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Tuesday, 29 October 2013

The Federal Court Denies A Petition Filed by Denver Attorney To Direct Federal Court Reporter To Release 200 Pages of Missing Transcripts Critical to Appeal in IRP6 Case

Advocacy group, A Just Cause, questions why petition for Writ of Mandamus is denied by United States Court of Appeal for the Tenth Circuit requesting that the courts resolve issues of federal court reporter allegedly omitting 200 pages of transcripts from the criminal trial of the IRP6.

Denver, Colorado (PRWEB) October 24, 2013
Court records show that Attorney Gwendolyn Solomon, Appellant Attorney for the IRP6, filed a motion with the 10th Circuit Court of Appeals requesting their intervention in resolving issues surrounding the alleged missing transcripts in the IRP6 case. The petition for Writ of Mandamus addresses issues critical to the appeal of the IRP6 case. Attorney Solomon requested that the 10th Circuit Court, order Court Reporter Darlene Martinez to release the complete unedited/verbatim transcripts and/or any electronic, digital and audio recordings related to transcript in question. (Petition for Writ of Mandamus 28 U. S. C 1651(a), Fed. R. App. P. 21 - D.C. No. 1:09-CR-00266-CMA Nos. 11-1487, 11-1488, 11-1489, 11-1490, 11-1491 & 11-1492)
The Court Order from the United States Court of Appeal for the Tenth Circuit states, “Kendrick Barnes, Demetrius Harper, Clinton Stewart, Gary Walker, David Zirpolo and David Banks have filed a petition for a Writ of Mandamus seeking an order requiring the district court to release an unedited transcript of a bench conference from their jury trial. Petitioners filed several motions related to this transcript issue in the district court and all of them were denied.” The court order further states, “In their mandamus petition, petitioners contend that they 'cannot perfect their appeal without the verbatim transcript. (Pet. at 22) But this statement does not make sense given the procedural posture of their case. Petitioners each filed an appeal in 2011. Their consolidated appeals have been fully briefed, and petitioners raised the transcript issue in their appeals. The consolidated appeals were submitted to a panel for disposition on May 7, 2013.'” (Appellate Case: 13-1416 Document: 01019142130, Case 1:09-cr-00266-CMA, 10/16/13 USDC Colorado)
The petition for Writ of Mandamus filed by Attorney Gwendolyn Solomon alleges, on October 11, 2011, an unedited transcript of the bench conference was immediately requested by the petitioners. The Court Reporter, Darlene M. Martinez, provided a transcript but not the actual bench conference conversation requested. Solomon asserts, “The verbatim transcript is material to the issue concerning the violation of the petitioners Fifth Amendment rights. The failure to inspect or be provided the complete verbatim transcript prejudices the petitioners defense (and) makes it impossible to perfect their appeal and deprives them of due process of law and warrants a reversal on their convictions.” (28 U. S. C 1651(a), Fed. R. App. P. 21PETITION FOR WRIT OF MANDAMUS, Oct 8, 2013)
The Court Order of Denial asserts, “It is possible that petitioners may not have presented all of the arguments in their briefs on appeal that they now assert in their mandamus petition, but they had the opportunity to litigate those issues in their appeals. Petitioners have filed a frivolous mandamus petition that seeks relief that they already sought or could have sought in their appeals. The petition for a Writ of Mandamus is denied.” (Appellate Case: 13-1416 Document: 01019142130, Case 1:09-cr-00266-CMA, 10/16/13 USDC Colorado)
“A Just Cause questions why the courts would deny this petition under the auspice that the defendants have made this request before", asserts Sam Thurman, A Just Cause. "When new evidence was allegedly discovered in the transcripts of the last day of trial where Judge Arguello allegedly states that 200 pages of the unedited transcript would not be made available to the defendants, Ms. Solomon owed it to her clients (IRP6) to petition the courts. A Just Cause supports Attorney Solomon in her argument, because if there are 200 pages of a transcript allegedly missing, this is potentially critical trial material necessary for the defendants appeal process”, adds Thurman. “A Just Cause questions why the Petition for Writ of Mandamus has been denied in the case of the IRP6 case when the petition appears to meet the criteria for such a petition?”, Thurman ponders.
Nolo's Plain English Law Dictionary defines a A (Writ of) Mandamus as, "...an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion."
The IRP6 case concerns an African-American company (IRP Solutions Corporation) in Colorado that developed the Case Investigative Life Cycle (CILC) criminal investigations software for federal, state, and local law enforcement. The IRP6 (Kendrick Barnes, Gary L Walker, Demetrius K. Harper, Clinton A Stewart, David A Zirpolo and David A Banks) were convicted in 2011 after being accused of mail and wire fraud. The defense argues that key elements of the court transcript, which are key to the appeal, are missing. (D. Ct. No. 1:09-CR-00266-CMA) In response to the Writ of Mandamus filed by Attorney Solomon, the court order states, “The extraordinary relief of a Writ of Mandamus is not a substitute for an appeal, and it is not a vehicle to relieve persons of the consequences of their previous decision not to pursue available procedures and remedies.”)Weston v. Mann (In re Weston), 18 F.3d 860, 864 (10th Cir. 1994))
Attorney Solomon attests that, repeated requests for the verbatim record were made during trial and appellant attorneys, Charles H. Torres and Gwendolyn M. Solomon, filed various motions requesting a copy of the verbatim transcript along with requests for inspection of the unedited transcript to ascertain as to what transpired at the bench conference, but all motions were denied. (Docs. 631, 635, 636, 557 pp.138: 21-25, 139: 1-22, 149: 21-25, 150: 1-11, 618 pp. 2062: 22-25, 2063: 1-11; Vol I. pp. 965, 980, 1001, 1120, 3022: 22-25, 3023) Subsequently, numerous post-trial motions were filed by attorneys requesting a hearing to resolve the transcript issue with the court reporter, but those requests were also denied by Judge Christine Arguello. (D. Ct. No. 1:09-CR-00266-CMA)
The case of IRP Solutions (IRP6) is currently under appeal (US District Court for the District of Colorado, Honorable Christine M. Arguello, D. Ct. No. 1:09-CR-00266-CMA; Case Nos: NO. 11-1487, Case Nos. 11-1488, 11-1489, 11-1490, 11-1491 an 11-1492). Appellate Court panel includes the Honorable Senior Judge Bobby R. Baldock, Honorable Judge Harris L. Hartz, and Honorable Judge Jerome A. Holmes
For more information about the story of the IRP6 or for copies of the legal filings go to http://www.freetheirp6.org.
Related press releases: http://www.a-justcause.com/#!press-release/c21pq

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