9th Circuit, Alex Kozinski, Free Speech

On Remand: Purple Hearts And (Not So) White Lies

(c) Image by Juri H. Chinchilla.

On August 7, 1782, near the end of the American Revolution, General George Washington created the Badge of Military Merit, the precursor to the Purple Heart. Today, the Purple Heart is awarded to members of the U.S. armed forces who are wounded or killed in action. This week, On Remand looks back at the Purple Heart’s evolution, and the stories of two men who proudly wore the medal. But had they earned it?

Breaking with the European practice of honoring only high-ranking officers, General Washington recognized that in America “the road to glory in a patriot army and a free country is… open to all.” So, Washington created the “Badge of Military Merit” for remarkable or extraordinarily loyal soldiers. Per Washington’s instructions, the badge depicted a purple heart with lace trimming to be worn over the left breast. After the Revolutionary War, however, the award faded away.

In 1932, to commemorate Washington’s 200th birthday, General Douglas MacArthur revived the Badge of Military Merit as the “Purple Heart.” At that time, injury in battle was just one consideration in awarding the Purple Heart. Later, to distinguish it from another award, physical injury became the Purple Heart’s sole requirement. Yet, some have worn the medal without meeting that requirement….

The Tell-Tale Purple Heart on the Witness Stand

In 2005, David Hinkson, the owner of a water bottling company in Idaho, stood trial for soliciting the murders of three federal officials. The officials — a U.S. attorney, an IRS agent, and a judge — were all involved in a separate case against Hinkson for tax evasion. (He maintained that federal income taxes were unconstitutional — like certain other people — and therefore paid none on his business income.) On the witness stand sat Elven Joe Swisher, the government’s star witness. Swisher, a decorated Marine Corps veteran who wore a Purple Heart on his lapel, testified that Hinkson offered him $10,000 per head to torture and kill the three officials.

Swisher had once been an employee and friend of Hinkson. When the men met five years earlier, Swisher impressed Hinkson with his military service in the Korean War, firearms expertise, and “kill record.” (How many people had he killed? “Too many,” according to Swisher.) But by the time of the 2005 trial, their relationship had soured. In fact, Swisher had reported Hinkson’s repeated solicitations to authorities.

With Swisher on the stand, Hinkson’s lawyer highlighted the feud between the men. He then paused. He had an ace up his sleeve (or so he thought). By his calculations, Swisher would have been 13-16 years old during the Korean War, where Swisher claimed to have earned the Purple Heart displayed on his lapel. Skeptical, Hinkson’s attorney had contacted the National Personnel Records Center, and received a letter stating that Swisher had earned no awards or medals. During a sidebar conference:

Hinkson’s attorney moved to re-open cross-examination to inquire about Swisher’s purported military service and the object on his lapel. The prosecutor suggested Hinkson’s attorney should not “go there.” But Hinkson’s attorney wanted to “go there,” and the court granted the motion to re-open cross-examination.

In response to questioning, Swisher testified that he received the Purple Heart for combat “following” the Korean War on classified missions to free prisoners of war. When confronted with the letter stating he had not received any awards, Swisher did not flinch. In a “moment of Perry Mason court room drama,” Swisher pulled his own paperwork — a “Replacement DD-214” form from his jacket pocket, which purportedly validated his award. Hinkson’s attorney had messed with the wrong Marine. Chastising the attorney and himself for allowing the questioning at all, the judge instructed the jury to disregard all testimony concerning the Purple Heart.

Five days later, Hinkson’s attorney received a letter from the Marine Corps records department that validated his instinct. The letter alleged that:

… the “Replacement DD-214” form in Swisher’s official file clearly read that Swisher had not been awarded any medals and that, in fact, he was injured in an automobile accident in Washington State, not in combat. Further, [the letter] noted several of the medals listed on Swisher’s purported “Replacement DD-214” form did not even exist in 1957, when the form was dated.

Hinkson’s attorney brought the letter to the judge’s attention. But the judge found the letter and Swisher’s other military records indecipherable and inadmissible without testimony from someone familiar with military record keeping. Hinkson’s attorney failed to call such a witness. After two days of deliberation, the jury found Hinkson guilty of soliciting Swisher to commit the murders. It deadlocked or acquitted Hinkson, however, on separate counts of solicitation for which Swisher had not provided testimony.

Hinkson’s attorney moved for a new trial based on the military records the Court had excluded. But the district court denied the motion and the Ninth Circuit affirmed in a 7-4 vote. A spirited dissent argued that the case may have turned out differently if the jury had known about Swisher’s lies. Seven months later, Chief Judge Kozinski agreed, changing his vote to join the dissent and issuing a new order:

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…. Without Swisher, the government had no case.

Even with Kozinski’s support, however, Hinkson was one vote shy of overturning the District Court’s ruling. Meanwhile, because his trial testimony raised so many questions about his military credentials, Swisher was investigated and later indicted under the Stolen Valor Act for wearing unauthorized military medals, making false statements, and for collecting disability benefits to which he was not entitled.

Holy Shrapnel, Perelman!

For three months in 1971, Daniel Perelman served in the United States Air Force in Vietnam. He returned home uninjured and without seeing combat. Yet, twenty-three years later, Perelman received a Purple Heart for his Vietnam service.

According to a government pleading, it all began in 1991. That year, Perelman sought a Purple Heart for shrapnel injuries allegedly suffered in Vietnam. With the Purple Heart in hand a few years later, Perelman applied for and collected $180,000 in disability benefits from the Veterans Administration. He seemed to embrace his new wounded veteran status, wearing the medal at an August 2008 convention of the Military Order of the Purple Heart.

But roughly a year after that convention, Perelman received something else from the government — an indictment. The government alleged that Perelman had not been wounded in Vietnam after all. Rather, he had accidentally shot himself in the thigh in 1991 — twenty years after returning from Vietnam. Perelman pled guilty to both counts: stealing from the government and wearing a fraudulently obtained Purple Heart.

Perelman’s guilty plea reserved his right to make one First Amendment argument on appeal. He alleged that Section (a) of the Stolen Valor Act, which at the time punished those who “knowingly” wore military decorations or medals (or replicas), was overbroad and therefore unconstitutional. Perelman’s “parade of horribles” included actors, people attending costume parties, and proud or grieving children, grandchildren, spouses, and parents who, under a broad interpretation of the act, became criminals when they donned the borrowed or imitated medals.

The Ninth Circuit disagreed. The statute did not convert unwitting medal-wearers into convicts; it only penalized people who wore medals intending to deceive others. The government had a legitimate and compelling interest in preventing “the intentionally deceptive wearing of medals” and carried out that interest without suppressing a particular viewpoint.

The Controversy Continues

While Swisher and Perelman were not entitled to wear a Purple Heart, approximately two million have been properly awarded the honor. Because it is such a high honor (and confers monetary benefits), both the criteria for the award and those who lie about receiving one receive attention. Recently, after the Supreme Court’s decision in U.S. v. Alvarez striking down portions of the Stolen Valor Act, Congress rewrote the statute to better police fraud.  

The criteria for receiving the award are often criticized as arbitrary; for example, bestowing Purple Hearts on those with minor injuries. In 2004, John Kerry was mocked for receiving Purple Hearts for three injuries that required treatment with antibiotic ointment and five stitches. The writer Kurt Vonnegut, Jr., dismissed his Purple Heart as the result of a “ludicrously negligible wound.” Meanwhile, the award is denied to veterans returning from Iraq and Afghanistan with post-traumatic stress disorder. Many suffer acutely, but don’t receive the recognition of their peers who shed blood. While it remains a genuine issue for soldiers, at least the rest of us can be assured that dressing up as a decorated Air Force pilot for Halloween will not land us in prison.

Samantha Beckett (not her real name) is an attorney with more than ten years of experience working in Biglaw. When not traveling back in time, she is most likely billing it. Her writing has been featured in state and federal courts across the nation and in the inboxes of countless clients, colleagues, and NSA analysts. She can be reached at OnRemand@gmail.com.

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