9th Circuit

Testy 9th Circuit Judges Consider Purple Heart Lie

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Judges on the San Francisco-based 9th U.S. Circuit Court of Appeals appeared testy this week as they considered a colleague’s refusal to order a new trial because of a witness’s Purple Heart lie.

Judge Harry Pregerson talked over one judge and made a remark suggesting that Chief Judge Alex Kozinski was monopolizing the questioning, the Recorder reports. Pregerson also noted that “I have a Purple Heart, my father had a Purple Heart. So I know what it’s about,” the publication says.

Pregerson sat on an 11-member en banc panel that heard arguments on whether Judge Richard Tallman, sitting by designation, should have ordered a new trial in a murder-for-hire scheme, according to the story. The primary witness in the case against David Hinkson testified while wearing a Purple Heart that, it turned out, was never awarded to him. The witness also perjured himself in describing his military background, the story says.

The Recorder quoted this exchange between Pregerson, Kozinski and Hinkson’s lawyer, Dennis Riordan. The remarks follow an assertion by Kozinski that the “abuse of discretion” standard of review gives a lot of deference to the trial judge.

Pregerson: “I think the abuse of discretion was that this man came and said he was a Purple Heart veteran, a combat Marine, and that was very, very effective. He could have been impeached and shown that he was a fraud and it would have been an entirely different story.”

Riordan (to Kozinski): “Can I have 30 seconds to very directly answer your honor?”

Kozinski: “Absolutely. I’ll let you accept Judge Pregerson’s answer and build yours on top of that.”

Pregerson: “Well, a lot of us don’t get to talk much because we have some that monopolize these conversations.”

When Pregerson talked over Judge Kim Wardlaw, she interjected: “Wait a second, can I ask a question please? I mean I sat here for 10 minutes while a judge asked questions. I’d like to ask one.”

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