Due Process: Ninth Circuit Retrys the Case (again): U.S. v. Jernigan, 492 F.3d 1050 (9th Cir. 2008)

U.S.A. v. JERNIGAN, 492 F.3d 1050 (9th Cir. 2007) Jernigan is only another of several Ninth Circuit cases in which the court abandons its role as a reviewing court and retrys the case. In Jernigan, the defendant was convicted of bank robbery based on the testimony of five witnesses and retrieval of images from a video surveillance camera. Several months later, while in custody, Jernigan learned that another woman had robbed several banks in the same area, including the one robbed by Jernigan. In a motion for new trial, she argued the government had wrongfully withheld evidence that a woman similar in appearance to her had committed robberies while she herself was in custody, and her conviction should be reversed for failure of the government to disclose this evidence. The trial judge, who also conducted an evidentiary hearing on the motion, concluded no similarity existed between the two women. The Ninth Circuit panel who originally heard Jernigans appeal from this decision affirmed the conviction, quoting extensively from the trial record and the comments of the judge who specifically rejected the evidence of similarity; U.S.A. v. Jernigan, 451 F.3d 1027 (9th Cir. 2006). The Ninth Circuit reheard the case as a full panel (en banc) and reversed the conviction, never referring to the trial judges comments who presided at the trial and the motions, unambiguously commenting on the different appearances of the two women. Nor did the Ninth Circuit consider the decision of its earlier panel describing the accuracy of the identification. And, the defense attorney at trial never argued that the two women looked alike, only that his client was not the robber. A dissenting judge issued a stinging rebuke to the majority for reweighing the evidence. More specifically, he reproached the majority for completely ignoring the findings of the trial judge who presided at trial and at the motion for new trial. As noted in other contexts, the Ninth Circuit has repeatedly used this tactic of ignoring the findings of the trial judge who heard all the witnesses and examined the evidence. The Ninth Circuit simply refuses to act as a reviewing court without any deference to trial judges who observe the witnesses and supervise the evidence. Reversed on the ground of Due Process As of June, 2008 there is no further report of this case, i.e., whether the government retried Jernigan.

Due Process: Retrial in the Ninth Circuit: U.S. v. Hinkson, 526 F.3d 1262 (9th Cir. 2008). (En banc Court Reverses, U.S. v. Hinkson, 585 F.3d 1247 (9th Cir. 2009); See, January 10, 2010 Entry

Retrial required by the Ninth Circuit: U.S. v. Hinkson, 526 F.3d 1262 (9th Cir. 2008). En banc court reverses three judge panel and affirms conviction; U.S. v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) Some of the judges on the Ninth Circuit regard their role as a super trial court, reweighing the evidence, speculating on the potential of a different outcome at the trial, and ignoring precedent. Only an insatiable quest for error, unburdened by an inability of the Supreme Court to review all their innumerable mistakes, enables these judges to repeatedly find error no one else perceives. Here is the dissenting judges opening remarks commenting on the 2-1 judge majority opinion reversing the conviction in U.S. v. Hinkson, 2008 WL 2221009 (9th Cir.). In granting a new trial, the majority has assumed the role of super trial court rather than a reviewing court. The bottom line is that nowhere does the majority give any deference to the district courts detailed findings. Instead, in an effort to reconstruct the trial from the bottom up and in hindsight, the majority goes to great length to marshal the evidence, vigorously arguing the facts and the inferences from those facts and forgetting under the abuse of discretion standard, we cannot simply substitute our judgment for the district court. To what manipulation of the evidence is the dissenting judge referencing? Defendant Hinkson unambiguously hated an investigator, a prosecutor and a trial judge who had previously conducted an investigation into his business relationships in an unrelated trial. Hinkson repeatedly urged one Elven Joe Swisher to murder those three people and eventually Swisher reported these threats to the government. As a witness at the trial, Swisher testified to the threats and his relationship with Hinkson, eventually terminating unpleasantly. On the witness stand, Swisher wore a small lapel pin replicating a military Purple Heart medal as evidence of his military experience and honors in the Korean war. Eventually the evidence disclosed he had exaggerated his service record. The issue of late disclosure of Swishers false military records at trial led to an investigation by the defense and an extensive discussion with the trial judge. The misrepresentations were the subject of considerable disagreement among the parties but no one questioned Swishers military record in general. The prosecution conceded Swishers distortion of his record but the defense made only a tepid argument in its attempt to impeach him. The prosecutor warned defense counsel his attempt at impeachment would meet with a significant rebuttal. The evidence established that Swisher owned numerous weapons and, coupled with his Korean war experience, qualified him as a candidate of murder for hire. Although Swisher lied about his military record, Hinkson nevertheless believed him and his expertise in firearms. The prosecutor called numerous other witnesses and other evidence corroborated Swisher. The jury convicted Hinkson. After the trial court denied a motion for new trial, Hinkson appealed. The Ninth Circuit panel majority reversed and ordered a new trial based on evidence newly discovered by the defense after the trial confirming Swishers misstatement of his combat record. The panel majority consumes endless pages citing the testimony and arguments of counsel during the trial. The result is incomprehensible, the panel majority focusing exclusively on the Purple Heart pin and the fabrication of military records. As the dissent points out, wrongfully wearing a lapel pin replicating a Purple Heart medal hardly disqualifies a witness. Falsifying a personnel record is inexcusable but a trial does not hinge on collateral damage. The principal impact of evidence at trial is Swishers detailed testimony of threats corroborated by other witnesses. The false recitation of military history, believed by Hinkson, convinced him that Swisher and his war experience in Korea qualified him as an assassin. Obviously Swisher was attempting to receive additional governmental benefits and falsified his military records long before Hinkson solicited him for murder. The trial judge made an extensive examination of the military records and, aware of the falsity, denied the motion for a new trial on grounds this extraneous evidence was irrelevant as to Hinksons state of mind. The prosecution never asked Swisher any questions about his Purple Heart or other medals he was awarded (wrongfully) and focused on the Hinkson threats. The decision granting Hinkson a new trial is another example of appellate judges inexperienced in jury trials who heard no testimony, observed no witness demeanor, and ignored the decision of the trial judge that no error occurred. As the dissenting judge wrote, the majority are super trial judges, an all too familiar pattern of the Ninth Circuit. On October 20, 2008 the Ninth Circuit ordered this case reheard en banc. The en banc court reversed the 2-1 majority of the three judge panel and cited the appropriate rules for appellate courts in reviewing appeals from trial courts; U.S. v. Hinkson, 585 F.3d 1247 (9th Cir. 2009). See, further discussion in the January 6 entry.