Do Americans Attach any Significance to a Vet's Wartime Service?

Lest you think the title is merely posing an easily answered rhetorical question, consider the case of David Ronald Hickson.

Mr. Hickson was charged (and later convicted by a jury of his peers) with soliciting the murders of an IRS special agent, a U.S. attorney and a district court judge. It was alleged that he attempted to get two unrelated individuals to do so, but was only convicted based on the testimony of the second individual, Elvin J. Swisher. Mr Swisher was quite the key witness, providing testimony that Mr. Hickson approached him to conduct the murders. In fact, he was largely the only witness with any knowledge of this plot. And he was quite convincing. The government informed the jury that Mr. Swisher was “a Marine, a combat veteran from Korea during the Korean conflict.” On his lapel, Mr. Swisher proudly wore his purple heart replica.

Only….. Elvin J. Swisher was 16 during the war and did not serve as a drummer boy (before you ask). Undeterred by this fact, Mr. Swisher found refuge in the always popular “Top Secret POW recovery mission”. As an Amicus brief filed by William Mac Swain, president of the Korean War Veterans Association, would later note:

But the defense noticed that Swisher was several years too young to have served in Korea. Suspicions aroused, the defense cross-examined Swisher concerning his military service. Swisher responded theatrically by pulling from his pocket a purportedly official document corroborating his story that he had suffered combat injuries while participating in a “Top Secret” post-war mission to liberate American prisoners of war held captive in North Korea. The document also purported to show that Swisher had earned not only the Purple Heart but also the Silver Star Medal, a Navy and Marine Corps Medal with Gold Star, a Navy and Marine Corps Commendation Medal with Combat “V,” and a Marine Corps Expeditionary Medal.

How important was the testimony of Mr. Swisher?

Based on Swisher’s testimony, Hinkson was convicted of soliciting Swisher to murder the federal officials. But Hinkson was not convicted on other, similar solicitation charges tried in the same proceeding. Those charges resulted in a hung jury and an outright acquittal–apparently because the government’s witnesses on those charges did not claim the mantle of distinguished military service.

It was all a lie. No Purple Heart, no POW mission, no Silver Star.

Late last month, the NYT covered the ensuing legal machinations:

When Mr. Swisher’s lies came to light, Mr. Hinkson challenged his convictions for soliciting the murders. The jury had believed him guilty of more than loose talk, he said, only because Mr. Swisher had falsely presented himself as a battle-hardened killer.

But the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled against him last year by a 7-to-4 vote.

Mr. Swisher’s lies, the majority said, were no big deal. There was no reason to think the jury would have come out differently had it known of “Swisher’s routine, rather than heroic, military history,” Judge Carlos T. Bea wrote.

But, that is demonstrably not the case in fact:

[Mac Swain in his Amicus said], jurors are likely to believe those who have sacrificed to defend them and are likely to reject the testimony of those who have falsely claimed entitlement to honors for which others have bled and died.

That was not just speculation. One of the jurors at Mr. Hinkson’s trial, in Boise, Idaho, in 2005, later said he would have voted to acquit had he known the truth.

“I was surprised to hear that Mr. Swisher was allowed to tell such lies which created the misimpression that he would be a good ‘hit man’ candidate based on having been a decorated combat veteran,” the juror, Ben S. Casey, said in a sworn statement. “These lies discredit him as a witness and therefore discredit the rest of his testimony.”

And that line of thinking was sufficient to compel even Ninth Circuit Chief Judge Kosinski to rethink his earlier ruling:

I continue to agree with, and join, that portion of the opinion explaining how we review for abuse of discretion, but now disagree with the application of this standard to the case before us. I had underestimated the trust some jurors would have placed in Swisher if they thought he was a decorated combat veteran, and the likely backlash if they had learned he was a fraud. My change of heart came about after I read the Supreme Court’s summary reversal in Porter v. McCollum, 130 S. Ct. 447 (2009), and the amicus brief of William Mac Swain filed in our case. Without Swisher, the government had no case. I’m now persuaded that Judge Fletcher has the better of the argument for the reasons articulated in his dissent, which I join in full.

The dissent he would join argued that:

Swisher presented himself as a United States Marine who had been wounded in the service of his country. His status as a decorated war hero may have been, for some or all of the jurors, an additional reason to believe his testimony. The jury may have found Swisher particularly credible and sympathetic when, after an accusation by Hinkson’s counsel that Swisher was lying about his military record, Swisher dramatically produced his “replacement DD-214” from his pocket. The jury might also, despite the district court’s instruction, have penalized the defense for what appeared to be an unfounded attack on a decorated war hero.

Now, if a jury grants to veterans a higher level of “believability” regarding claims, does it not stand to reason that such is a benefit derived from their honorable military service? And as such, is it not also true that those claiming such honors for themselves when they have not earned them causes harm to others? Put differently, would a later juror, knowing of Mr. Swisher’s perfidy on the stand, not question whether another witness claiming similar honors was telling the truth?

To me, awards received in combat are a singular honor. While some argue that Stolen Valor cases are little more than lies told in a pub to pick up women, to me there is an obvious distinction. I’ve written before about liars like Mayor DuParr of Calumet Park, Illinois, and the odious Richard Glen (Duncan) Strandlof who founded a Veterans Service Organization on his lies. Various courts have now found the Stolen Valor Act unconstitutional, asserting that there must be a “bona fide harm”, and then further, finding none in any of those cases. I’ve always been amazed that no one could find harm in someone stealing someone else’s honor. If the Government suddenly just prints tons and tons of currency, does it not make the dollar in your wallet diminish in purchasing power?

Just yesterday, The American Legion filed an Amicus brief in the Strandlof case, arguing (in much clearer English) what I have been arguing all along:

A person who falsely claims military honors is a thief who steals from the vault of goodwill that supports the relationship between the American military and the civilian public. For the thief, there are immediate benefits that include prestige, employment and political opportunities, and material rewards in the form of veterans’ benefits. Id. But this is only part of a more lasting harm. False claims of military honors cheapen and bring into question the sacrifices of those who have earned them. Because of Standlof’s lies, there are many who will now be suspicious of any claim to a military award, even by a legitimate military hero. This cynicism is destructive to the American socio-military relationship. Hence it was not without cause that General Washington warned: “Should any who are not entitled to these honors have the insolence to assume the badges of them, they shall be severely punished.” Boynton, surpa, at 34-35. Washington’s statement is wholly consistent with the principles of the Constitutional Convention that he led just five years later.

Are Mr. McSwain, Chief Judge Kosinski and a host of my brothers and sisters in arms correct in believing that the average American attaches significance to a veteran’s wartime service? And if we are correct, then would not someone like Strandlof or Swisher claiming something to which they are not entitled cause us harm?