Public Defense

The forest for the trees, or: the purple heart for the prejudice

By Gideon

Believe me now?

One standard jury selection question in criminal trials asks prospective jurors whether they’d give more weight to witnesses who hold some position of authority: most frequently police officers. The underlying theory is simple: testimony and evidence should be judged on its own and not accorded more weight simply because it comes out of the mouth of someone we have grown up being taught to trust.

Given the status and honor accorded military personnel in this country, one might make a reasonable argument that the same level of trust and deference applies to former servicemen/women. Which is why juries must be cautioned in the same way. Apparently, one judge doesn’t see it like that. Here’s the story:

Federal prosecutors charged Hinkson with attempting to hire his one-time friend, Elven Joe Swisher, to kill an IRS agent, a prosecutor and an Idaho district judge. Swisher testified against Hinkson while bedecked with a Purple Heart.

Turns out Swisher was never awarded the medal, and by the conclusion of trial, it became clear he perjured himself about his military service. Yet Tallman, a law and order judge, refused defense requests for a new trial.

A split panel of the 9th Circuit reversed, and this week an en banc panel heard reargument. You can read the story for yourself to learn about the contentious and, at times, hilarious oral argument. [Summary: judges bickering]

I will spare you the pontification about the right to a fair trial and the poisoning of the jury and the opportunity to confront your accuser and show him to be a complete liar. Because that stuff is just so basic.

What struck me about this story is the apparent cluelessness of the prosecutor:

Department of Justice attorney John De Pue appeared in court wearing the Distinguished Service Medal. “Why are you wearing the Distinguished Service Medal?” Pregerson asked.

“Because I earned it in the Army,” De Pue said.

“Because you’re impressing us, right?” [Judge] Pregerson replied. “And you impressed me when you said that. And if a guy wears a Purple Heart medal it’s going to impress people.”

De Pue never connected his medal to the government’s legal argument.

In a case about whether a witness falsely wearing a purple heart and whether that impacted the jury’s credibility determination of his testimony, this prosecutor wears…a service medal.

The judges questions underscore the importance of giving the defense the opportunity to cross-examine Swisher. It’s natural to ask about something so prominently displayed that almost always has a story attached to it. If Swisher was wearing the purple heart, jurors could reasonably have concluded that he was in the service and did something honorable and brave. One need not be Scalia to guess the impact exposing Swisher as a fraud and a liar would have.

I wonder if he wears it every day. I doubt it. So why did he choose to wear it to oral argument? Did he mean to show the judges that it didn’t mean anything? Or was he wearing it in a show of solidarity with Swisher?

And if he does wear it every day, he’d be lying if he said he didn’t do it to appear authoritative. Which is sort of the point of the appeal. It seems that De Pue missed that and in turn may have succeeded in helping the defense. Either that, or he showed up for the wrong oral argument.

[Update: Of course, the educational portion of this story is that we now know what a fed-a-pult is:

"Maybe this was along the lines of his fed-a-pult," [Judge] Fletcher said. “A fed-a-pult, for those of you who don’t know, is a device to throw federal agents into canyons.”

Don’t ever say I don’t teach you anything again.]

Full post as published by A Public Defender on December 18, 2008 (boomark / email).