The Hinkson Case Decided: Freedom Bows To Protectionism

by Wes Hoyt

In 2005, David Hinkson, the owner of WaterOz, an Idaho County business, became the poster child of government corruption when he was indicted and convicted of crimes which he did not commit and, in fact, which never happened.  It was a perfect storm involving a corrupt judge, miscreant prosecutors who suborned perjury and a clever witness, who was facile at fabricating stories touting non-existent military valor, stolen from other service men and women of America.
Hinkson was handed a life sentence in 2005 because the trial judge would not allow him to present hard evidence of his innocence, such as his passport showing he was not in Idaho when the crimes supposedly were committed.  Now the Ninth Circuit Court of Appeals, which reversed the Hinkson conviction in May 2008, has overturned that decision and in a complicated and convoluted opinion by Judge Carlos Bea on November 5, 2009. The Bea decision affirms Hinkson conviction by creating new law that prohibits review of bad lower court rulings which interfere with a defendants right to a fair trial by excluding evidence of innocence. Basically, under this new law, a trial judge’s errors virtually never get reviewed. Is this the doctrine of the “infallibility of judges” in a new socialist state that is being created by government officials?

Everyone agrees that the government’s sole witness to the charges on which Hinkson was convicted, Joe Swisher of Cottonwood, ID, committed the crime of perjury while on the witness stand.  By falsely claiming to be a decorated Korean Era combat veteran who was wounded on the battlefield (as a credibility booster), Swisher offered a highly dramatic presentation that he had been approached by Hinkson to kill government officials.  In his flawed-fiction about Hinkson, Swisher selected as the times he was solicited by the WaterOz owner, periods when Hinkson was out of the State of Idaho. In a similar blunder, Swisher, selected for his resume of military awards, commendations which were created after he claimed to have received them. Swisher even had the nerve, with the prosecutor’s consent, to present in the Hinkson trial a forged government document (Form DD-214 or Defense Department discharge form) which showed numerous military commendations had been awarded to him. He even went so far as to say that his decorated war hero status was the reason that Hinkson supposedly wanted to hire Swisher as a hitman. That statement was the link which tied the Swisher lies about his military service to the lies about the supposed Hinkson solicitation.

The recent Ninth Circuit decision agreed with J. Tallman that proof of Swisher’s lies about his war hero status was irrelevant to Hinkson’s conviction and affirmed J. Tallman’s exclusion of Swisher’s military record from the jury’s consideration.

As it turns out, Swisher, never saw combat, although he claimed he was wounded in the Korean War. Someone did the math and discovered he was age 13 when the conflict started and 16 when the Armistice was signed, so Ooops, that was the tip off that Swisher was lying! A few stutter-steps later, with a new fabricated story, Swisher made a quick change and claimed his injuries came in the post-Korean War period while he was on a classified mission to free POWs from supposedly secret N. Korean prison camps. Again this story was proven false because the Marines conducted no such missions and Swisher did not have the training to participate in any such activity as he was a Pfc. Swisher’s own military file was used to convict him of forging military documents (a DD-214), perjury before the VA and theft of government property, not to mention the crime of wearing military medals of honor never awarded to him.

To say that Swisher was untrustworthy as a witness in the Hinkson case is to put it mildly, but the problem was how to communicate that information to the Hinkson jury. Most experts would agree that the military record itself was the best evidence of the falsity of Swisher’s statements. With Swisher’s record in the courtroom during the Hinkson trial, J. Tallman simply found that there were “other documents” which supported Swisher’s story of secret missions in Korea. If so, those “other documents” would have been introduced to prevent Swisher’s 2008 conviction. But, because those “other documents” were a figment of J. Tallman’s imagination Hinkson was denied the opportunity to prove his innocence.  J. Tallman actually ruled Swisher’s military record would confuse the jury. What he meant was, the military record would distract the jury from focusing on the government’s theory of the case and that would confuse to learn that Hinkson might be innocent.

In legal circles, the decision of J. Bea affirming the 2005 Hinkson conviction is being seen as a vindication of J. Tallman because he also sits on the Ninth Circuit Court of Appeals. In order to white wash J. Tallman’s bias for the prosecution, a totally new standard for reviewing trial court decisions has been created that should pretty much eliminate future appeals.    

Here is the problem, Richard Tallman, a Ninth Circuit judge, sat by designation as the Hinkson trial judge. He is the one who consistently denied Hinkson the opportunity to prove his innocence. Key to Hinkson’s defense was showing the jury a copy of Swisher’s military record, which was devoid of any evidence that would have indicated Swisher was in combat, wounded in action, served in Korea, or decorated with medals. Swisher’s 2008 conviction for these crimes now absolutely and unequivocally proves that Swisher lied in the Hinkson trial. Unfortunately, at the time of the Hinkson trial, Swisher had not been convicted and that was at the height of his spreading lies about being a decorated war hero.

In fact, what the record showed was that Swisher was court marshaled and busted from a Corporal to Pfc., rather than being an award winning GI. But, starting in 2002 in order to claim VA benefits, Swisher felt he had to pretend to be a war hero; Swisher wanted both the psychological and the monetary benefits of being accorded this special status. He paraded around Idaho County wearing a fishing vest festooned with some of the highest honors a soldier can receive, which were pinned to his chest like Christmas ornaments.

This was a slap in the face to US Veterans everywhere, because Swisher, a phony hero, sucker punched his fellow servicemen, including Hinkson who was honorably discharged from the Navy after the Viet Nam War. As a decorated war hero Swisher was allowed to go to the front of the line, ahead of real heroes, especially at VA medical facilities. Also, he was given $3,000 per month as a disability benefit and he received hundreds of thousands of dollars of free medical care at the VA Hospital for a 2002 heart attack, when neither that condition, nor any of his alleged wounds were service connected. All of these benefits were based on his forged DD-214. 

Do you think a jury would have believed one word Swisher uttered about Hinkson soliciting him to be a hitman if the jury had been informed that Swisher was lying about being a decorated combat hero? If Swisher could tell a whopper like that with a straight face, why not make up a story about Hinkson? Especially, if the jury had learned that Hinkson was not in Idaho and Swisher was in a wheelchair with a catheter from a massive heart attack when the solicitation supposedly happened.

You see, with Swisher, it was sour grapes. Swisher lost his civil lawsuit attempt to steal Hinkson’s WaterOz business in ’03.  So it was payback time and Swisher and he promised he would go to Boise to testify in a way that would put Hinkson in jail for life. With the help of a dishonest judge, corrupt prosecutors and some power crazed federal officials who wanted Hinkson behind bars, Swisher was able to get the job done simply by spinning a yarn.

In order to protect J. Tallman from the embarrassment of a reversal, seven members of the Ninth Circuit panel said that his rulings should not be subject to review. Why was it that these judges were afraid to criticize one of their own colleagues? Maybe, J. Tallman never should have been designated to as the trial judge, when it would be his colleagues who had to review his decision. How unjust can that be? If the judge you face in the trial court slides behind the curtain and then reviews his own decisions, there is no independent, objective or neutral review. Isn’t it the same when the colleagues of a trial judge make up the reviewing panel?  In such cases, even the appearance of propriety is lost.

One famous evaluator of Ninth Circuit decisions calls the Bea opinion “disappointing.” Another author mentioned that J. Tallman was faced with conflicting evidence in Swisher’s military file. However, that was the big lie that J. Tallman told in order to keep Swisher’s military record from the jury. He did not want the jury to find out for themselves who Swisher really was, so he invented facts that did not exist by saying that there were “other documents” which supported the Swisher story of secret missions in N. Korea, then excluded the evidence which would have proven otherwise. So Judge Tallman, what were those “other documents,” where are they, how did you get them, why didn’t anyone else (like Hinkson) have them and why weren’t they a part of the record on review?

When J. Tallman’s misconduct came to the surface, it was covered up by his brethren on the Ninth Circuit. Clearly, Judge Bea’s opinion was a white wash of J. Tallman’s erroneous rulings, and it was not about the Hinkson case any more, rather, it was a referendum on Tallman himself.  Clearly, such raw politics do not belong in the court system.       

Every Veteran in the USA should be offended because the court system has tarnished their service by allowing Swisher, the imposter, to hide the truth about his stolen valor from a jury in order to obtain the conviction of an innocent man. The question is, will the veterans of America demand the Ninth Circuit Court of Appeals throw out this decision that degrades the honors bestowed upon real heroes by upholding the likes of a Joe Swisher who claim those honors by fraud? 

By the way, Judge William Fletcher and four other judges of the Ninth Circuit did not bow to the political pressure from the Tallman supporters. They carefully analyzed the case and, in a dissenting opinion, pointed out why Swisher’s deceit about his military service and prohibiting the jury from seeing the military record deprived Hinkson of a fair trial, but they were in a 7 to 4 minority.

What has been lost for Americans by this decision is the assurance of a court system filled with stable individuals of high integrity. This case, along with a string of other evidence, shows that we are being goaded by self seeking government officials who are using our freedoms as their spring board to power in these perilous times.