Wednesday, July 14, 2010

U.S. v. Hinkson (9th Cir. - July 14, 2010)


Judges usually don't change their mind. Especially in a high-profile en banc case.

But here's what Chief Judge Kozinski says this morning, in a case that I've talked about on several occasions (here, here and here), and that -- as I've mentioned -- has been unusual from the outset:

"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."

Equally unusual as a change of heart is to single out an amicus brief as a motivating factor. Mac Swain, by the way, is the President of the Korean War Veteran's Association, and his brief was prepared by John Keker.