Page 6103 of 9th Circuit Opinion 5-30-08
Letter from the National Personnel Records Center. The letter was dated the day of the cross examination and had been faxed to defense counsel’s office at 2:34 p.m. that afternoon. The letter was signed by Archives Technician Bruce R. Tolbert. The letter (hereinafter the “Tolbert letter”) stated:
[A] U.S. Marine Corps record was located on file at this Center for Mr. Swisher based on the information provided in your request. The USMC record shows Mr. Swisher served on active duty in the USMC from August 4, 1954 to his release from active duty on August 3, 1957. He was subsequently discharged from the USMC reserves on August 3, 1962. In addition, Mr. Swisher’s Marine Corps record has been carefully examined by the Military Awards Branch of the office of the Commandant of the Marine Corps, and that office has stated that his record fails to show that he was ever recommended for, or awarded any personal decorations. Defense counsel asked Swisher whether the letter “might refresh [his] recollection as to whether or not the Government issued [him] a Purple Heart.”
Page 6106 of 9th Circuit Opinion 5-30-08
The court excused the jury and the conversation continued. The court asked the prosecutor to confirm that he had seen the document that morning at 9:00 a.m.
The prosecutor replied: [Swisher] showed it to me at 9:00 a.m. this morning because I had asked — he had mentioned Korea serving in Korea.
I said “Wasn’t the Armistice in ’52?” He said “But there was still you know combat; and it continues to this day” which I happen to know to be true.
There is combat to this day in Korea.
Defense counsel requested a mistrial based on the prosecutor’s failure to inform the defense that Swisher had given the government a document that appeared to contradict the letter from the National Personnel Records Center.
The prosecutor responded that defense counsel “should have listened to me when I said ‘Don’t go there.’ ”
He elaborated: I didn’t go into anything about his combat or his medals or anything else on my direct. He chose to go down this path even when I objected to it.
I didn’t draw attention to the little pin in Mr. Swisher’s lapel. Lots of people wear them. They could be anything. He wanted to make an issue of it. . . . .
Counsel whipped out his document that he received minutes ago. I believe he probably didn’t have enough time to read it and digest it and tried to use that to impeach the witness. That was improper. It was a grandstand play in front of the jury that didn’t that wasn’t so grand and he got caught on it. That’s where we are.
There is nothing the Government did that caused him to go in the area he did. We tried to avoid going into this area. I don’t think you know I barely had time to look at this myself. It refers to other that this replaces some document previously issued. I don’t know what that document is and it just led me to conclude that this is not a proper area to go into.
The court denied the motion for a mistrial: The court finds as a matter of fact that if [Swisher’s document] is a copy of a genuine military record — and at this point I don’t have any way to determine that; but it appears to be genuine at least in appearance. It indicates consistently with how the witness has testified; that he did in fact receive multiple shrapnel and gunshot wounds in September 1955 in Korea; and that he was awarded commendations and medals including the Purple Heart.
The court stated that “until the receipt of the [Tolbert] letter” the government “had no reason to believe that [Swisher’s document] was discloseable under Brady or Giglio because it was not impeaching.”
The court offered to “instruct the jury to strike that portion of the cross examination of Mr. Swisher that relates to the Purple Heart.
Just tell them to completely disregard all testimony about the Purple Heart.”
Page 6113 of 9th Circuit Opinion 5-30-08
Outside the presence of the jury, the court stated that a “quick review of the file indicates that Mr. Swisher was, in fact, involved in top secret activities; and it appears that he was awarded the medals that he claims that he was awarded. . . . [The documents] do not appear to be impeaching.”
Tallman lied. He had the record in front of him.
Page 6132 of 9th Circuit Opinion 5-30-08
Because it had participated in the grand jury proceedings the government knew long before defense counsel that Swisher had given inconsistent testimony about his military experience. Swisher’s first grand jury testimony was in April 2002 – more than two and a half years before Hinkson’s trial. Because grand jury testimony is secret Hinkson could not have known about it in 2002 and 2004. Only the government knew about it, and the government did not reveal the grand jury testimony to Hinkson until a week before trial.
The district court made it quite clear that in its view the dispute over Swisher’s military record concerned a collateral impeaching matter and that Hinkson would not be permitted to introduce anything into evidence that would show that Swisher had lied about his military record including documents from Swisher’s official personnel file.
Letter from the National Personnel Records Center. The letter was dated the day of the cross examination and had been faxed to defense counsel’s office at 2:34 p.m. that afternoon. The letter was signed by Archives Technician Bruce R. Tolbert. The letter (hereinafter the “Tolbert letter”) stated:
[A] U.S. Marine Corps record was located on file at this Center for Mr. Swisher based on the information provided in your request. The USMC record shows Mr. Swisher served on active duty in the USMC from August 4, 1954 to his release from active duty on August 3, 1957. He was subsequently discharged from the USMC reserves on August 3, 1962. In addition, Mr. Swisher’s Marine Corps record has been carefully examined by the Military Awards Branch of the office of the Commandant of the Marine Corps, and that office has stated that his record fails to show that he was ever recommended for, or awarded any personal decorations. Defense counsel asked Swisher whether the letter “might refresh [his] recollection as to whether or not the Government issued [him] a Purple Heart.”
Page 6106 of 9th Circuit Opinion 5-30-08
The court excused the jury and the conversation continued. The court asked the prosecutor to confirm that he had seen the document that morning at 9:00 a.m.
The prosecutor replied: [Swisher] showed it to me at 9:00 a.m. this morning because I had asked — he had mentioned Korea serving in Korea.
I said “Wasn’t the Armistice in ’52?” He said “But there was still you know combat; and it continues to this day” which I happen to know to be true.
There is combat to this day in Korea.
Defense counsel requested a mistrial based on the prosecutor’s failure to inform the defense that Swisher had given the government a document that appeared to contradict the letter from the National Personnel Records Center.
The prosecutor responded that defense counsel “should have listened to me when I said ‘Don’t go there.’ ”
He elaborated: I didn’t go into anything about his combat or his medals or anything else on my direct. He chose to go down this path even when I objected to it.
I didn’t draw attention to the little pin in Mr. Swisher’s lapel. Lots of people wear them. They could be anything. He wanted to make an issue of it. . . . .
Counsel whipped out his document that he received minutes ago. I believe he probably didn’t have enough time to read it and digest it and tried to use that to impeach the witness. That was improper. It was a grandstand play in front of the jury that didn’t that wasn’t so grand and he got caught on it. That’s where we are.
There is nothing the Government did that caused him to go in the area he did. We tried to avoid going into this area. I don’t think you know I barely had time to look at this myself. It refers to other that this replaces some document previously issued. I don’t know what that document is and it just led me to conclude that this is not a proper area to go into.
The court denied the motion for a mistrial: The court finds as a matter of fact that if [Swisher’s document] is a copy of a genuine military record — and at this point I don’t have any way to determine that; but it appears to be genuine at least in appearance. It indicates consistently with how the witness has testified; that he did in fact receive multiple shrapnel and gunshot wounds in September 1955 in Korea; and that he was awarded commendations and medals including the Purple Heart.
The court stated that “until the receipt of the [Tolbert] letter” the government “had no reason to believe that [Swisher’s document] was discloseable under Brady or Giglio because it was not impeaching.”
The court offered to “instruct the jury to strike that portion of the cross examination of Mr. Swisher that relates to the Purple Heart.
Just tell them to completely disregard all testimony about the Purple Heart.”
Page 6113 of 9th Circuit Opinion 5-30-08
Outside the presence of the jury, the court stated that a “quick review of the file indicates that Mr. Swisher was, in fact, involved in top secret activities; and it appears that he was awarded the medals that he claims that he was awarded. . . . [The documents] do not appear to be impeaching.”
Tallman lied. He had the record in front of him.
Page 6132 of 9th Circuit Opinion 5-30-08
Because it had participated in the grand jury proceedings the government knew long before defense counsel that Swisher had given inconsistent testimony about his military experience. Swisher’s first grand jury testimony was in April 2002 – more than two and a half years before Hinkson’s trial. Because grand jury testimony is secret Hinkson could not have known about it in 2002 and 2004. Only the government knew about it, and the government did not reveal the grand jury testimony to Hinkson until a week before trial.
The district court made it quite clear that in its view the dispute over Swisher’s military record concerned a collateral impeaching matter and that Hinkson would not be permitted to introduce anything into evidence that would show that Swisher had lied about his military record including documents from Swisher’s official personnel file.