Veterans expressed outrage about a recent Ninth Circuit opinion, in an amicus brief filed Wednesday on behalf of William Mac Swain, National President of the 17,000-member Korean War Veterans Association. Mac Swain is represented by John Keker, founder of Keker & Van Nest and himself a wounded veteran of the Vietnam War.
Mac Swain, a decorated combat veteran, has asked the U.S. Court of Appeals for the Ninth Circuit to review and reverse its en banc decision upholding the solicitation to murder conviction of David Roland Hinkson. The Ninth Circuit upheld the conviction—although the government’s key witness against Hinkson lied on the stand about being a war hero. The amicus brief states that Mac Swain is “one of many veterans dismayed by the en banc Court’s implicit message that American jurors attach little or no significance to a witness’s testimony that he is a decorated combat veteran.”
Last November, a divided 11-judge panel of the Ninth Circuit affirmed the district court’s ruling that evidence proving that Elven Joe Swisher had lied about his military record was “not ‘material’ to the issues at trial’ and was “‘merely impeaching’ because it did nothing more than attack Swisher’s credibility regarding his military service rather than his testimony regarding the [crimes] charged.”
Echoing that holding, the government has stated that it opposes the filing of Mac Swain’s brief on the ground that “Swisher’s actual military experience was irrelevant to the government’s case.” Keker commented: “This shows that the government is perfectly happy to have fake combat veterans testify before criminal juries, but objects to letting real combat veterans, like Mr. Mac Swain, be heard in the Court of Appeals.”
In 2004, Swisher told an Idaho jury that Hinkson asked him to kill three federal officials, including a federal judge, because Hinkson was impressed by Swisher’s claim that he had killed in combat. Swisher’s testimony was uncorroborated. During and after trial, defense attorneys learned that Swisher’s story was riddled with lies: He never had served in Korea or any combat situation, never had suffered any combat related injury, and never had received any of the numerous medals he claimed to have been awarded. The Purple Heart that he wore pinned to his lapel while testifying against Hinkson was a fake.
In 2008, a three-judge panel of the Ninth Circuit reversed Hinkson’s conviction, holding that the trial judge should have ordered a new trial in light of Swisher’s deceit. But last year, the 11-judge en banc panel reinstated the conviction.
San Francisco appellate attorney Dennis P. Riordan, representing Hinkson, has asked the full Ninth Circuit court to rehear the appeal.
Keker served as an infantry platoon leader in Vietnam while a First Lieutenant in the United States Marine Corps. He was wounded and retired from the Marine Corps in 1967. Keker received the Purple Heart.