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Wednesday, 21 October 2015

A Just Cause Questions the Integrity of Justice and Due Process of the Appellate Court of the Tenth Circuit in the IRP6 Case

Source: A Just Cause

A Just Cause 
October 21, 2015 10:04 ET

A Just Cause Questions the Integrity of Justice and Due Process of the Appellate Court of the Tenth Circuit in the IRP6 Case

A Just Cause Contends That Appellate Court Conspired With the Lower Court to Violate Due Process and Civil Rights of Wrongly Convicted IRP6

DENVER, CO--(Marketwired - October 21, 2015) - A Just Cause (AJC) continues to explore the injustices and inequities that occurred in the IRP6 case, particularly with respect to the Appellate Court decision, which side stepped multiple critical issues in their decision against the IRP6, irresponsibly upholding the decision of the lower court. The Tenth Circuit Court of Appeal for the IRP6 case consisted of a three-judge panel that included Senior Judge Bobby R. Baldock, Judge Harris L. Hartz, and Judge Jerome A. Holmes (Judge Holmes wrote the opinion) (D.C. No. 1:09-CR-00266-CMA, Appellate Case 11-1492).
The IRP6 are six executives that worked at IRP Solutions Corporation, which was raided in February 2005. After the raid, false charges of mail and wire fraud were brought against the six executives known as the IRP6 -- David A. Banks, Kendrick Barnes, Demetrius K. Harper, Clinton A. Stewart, Gary L. Walker, and David A. Zirpolo -- who were all tried and wrongly convicted in 2011 for failure to pay debts to staffing companies related to completing software development work for sales to law enforcement agencies, specifically the Department of Homeland Security and the New York City Police Department (D. Ct. No. 1:09-CR-00266-CMA).
"There are so many unanswered questions in the wake of the IRP6 Appellate decision. There are missing transcripts that substantiate a violation of their Fifth Amendment rights, violations of the Speedy Trial Act, and expert witnesses who were denied the right to testify on behalf of the IRP6. If you think about it, the Tenth Circuit appellate judges, Baldock, Hartz and Holmes, simply rubber-stamped the decision of the lower court. There is no evidence of them looking at the case with fresh eyes or digging any deeper into the issues raised on appeal. The appellate judges even ruled against previous Tenth Circuit precedent, which is unheard of. The list just goes on and on," states Lamont Banks, Executive Director of A Just Cause.
"We encourage everyone to look into the facts in the IRP6 case with an open mind and consider the deception of the courts. A Just Cause is certain that people will arrive at the same conclusion -- many things went terribly wrong in the IRP6 case and multiple parties, working on behalf of the government as well as the court, have acted unlawfully and dealt treacherously with the IRP6. A grave injustice occurred for these men, all law abiding citizens with no prior criminal records, and it must be rectified," concludes Banks.
"One of the most alarming and contentious issues in the IRP6 case pertains to the 200 pages of missing transcript, which the trial judge acknowledged as missing," remarks Lisa Stewart, an executive of A Just Cause. "This missing transcript is of the utmost significance because it contains a critical exchange where District Judge Christine Arguello compelled one of the IRP6 to testify. Court transcripts confirm multiple instances of Judge Arguello threatening to close the case of the IRP6 prematurely. It is entirely too convenient that on the day in question, when IRP6 contend they were compelled to testify and the records are nowhere to be found. From the time of the court proceeding to date, the requested court transcript has never been delivered to the IRP6," remarks Lisa Stewart, an executive of A Just Cause.
Court records from the district court show that Court Reporter Darlene Martinez admits to omitting 200 pages of the transcript, and that Federal Judge Christine Arguello did not release the omitted pages (D. Ct. No. 1:09-CR-00266-CMA, October 2011, Court transcript pages 2062 -2063). According to court records the presiding judge in the original criminal case, Judge Christine Arguello stated, "First of all, the unedited version (of the transcript) cannot be used for any purpose... how many pages is it?" Martinez affirmed, "Over 200 pages." Judge Arguello further stated, "Over 200 pages...for no purpose that I can see that would be served by having that at this time. I am not going to have an expedited, and unedited version (of the transcript) delivered to the defendants (IRP6)," concludes Arguello. (D. Ct. No. 1:09-CR-00266-CMA, October 2011, Court transcript pages 2062 -2063).
The Honorable Judge H. Lee Sarokin is a well-respected, retired federal judge with many years of sitting on the appellate court. He has weighed in on the IRP6 case, authoring a five-part article series, entitled 'The Case of the Missing Transcript' on the Huffington Post. In part one, Judge Sarokin states, "Resolving the issue should be a no-brainer, right? Look or listen to the transcript; read or hear what the judge said and decide whether or not the defendants reasonably concluded that at least one of them had to testify. But here's the rub. There apparently is no record or transcript of the conversation available to either the defendants or the appellate court... I have no doubt that whether or not they felt compelled to testify depends exclusively on what the judge said to them at that precise moment. To suggest that the court's 'exact language' is immaterial is ludicrous, particularly since the court and the defendants disagree as to what was said. Certainly no judge would direct a criminal defendant to testify against his or her own will, but it is conceivable that something was said that reasonably led them (IRP6) to that conclusion," Sarokin concludes.
In Part 2 of his Huffington Post series, 'The Missing Transcript Case Becomes More Curious', the Honorable Judge H. Lee Sarokin, focuses on the "separate civil suit was instituted against the court reporter to turn over the transcript." Though the civil suit was dismissed, after reading the court's opinion, Judge Sarokin wrote that the factual findings in that opinion "confirm without question the defendants' contention -- not about what was said, but rather that there is no record of what was said," resolves Judge Sarokin.
Court documents from the January 2014 hearing show that Judge R. Brooke Jackson was determined to get to the bottom of the transcript issue. He states, "...ultimately those of us who work for the federal government and the Justice Department have a goal, and that is to achieve justice," (Case 1:13-cv-02260-RBJ Document 37 Filed 04/18/14 USDC Colorado Page 19). Judge Jackson goes on to pose a question in open court to government attorney Michael Johnson, "And if -- I'm not saying it's even likely, I would rather think it might be improbable -- but if something occurred where a criminal defendant, by inadvertence, let's say, felt that he was forced to testify and objectively that a reasonable person could so interpret something that a judge said and if that person then took the stand when he otherwise would not have, that would not be just, would it?" (Case 1:13-cv-02260-RBJ Document 37 Filed 04/18/14 USDC Colorado Page 19).
Records show that Mr. Johnson replied, "I agree, Your Honor, that would not. But those are not the facts in this case," (Case 1:13-cv-02260-RBJ Document 37 Filed 04/18/14 USDC Colorado Page 19). Judge Jackson responds, "Maybe not, and that's why my suggestion was let's find out what the facts of this case are. But what you are saying is, no, we want to have you, Judge, explore the legal issues and see if we can get this thing dismissed on the law and not have to go down that road and nobody will ever know what really happened. Right?" (Case 1:13-cv-02260-RBJ Document 37 Filed 04/18/14 USDC Colorado Page 19).
Commending Judge R. Brooke Jackson, who "in an incredibly detailed opinion considering the miniscule nature of the claim, but obviously sensitive to the charges asserted, made detailed factual findings," Sarokin highlights Judge Jackson's finding by quoting his opinion in the civil trial, "No statement like that which was recalled by the court or that which was recalled by the defendants appears in the transcript...It is undisputed that Judge Arguello said something that does not appear in the transcript -- either the unedited or the final version."
"There was a flip flop between Judge Jackson's strong words at the hearing and his final ruling that remains unexplained. He concedes definitely that something is missing from the transcript, yet fails to hold the court reporter and government accountable, dismissing the civil suit," states Banks. Nevertheless, Judge Sarokin writes that "...Having now resolved the factual issue so clearly by an independent court, one cannot help but wonder wherein lies the delay? If there is no way to determine whether or not the 5th Amendment rights of the defendants were violated, does the Court of Appeals have any other choice but to either reverse and remand for a new trial or dismiss?"
Part two is a cliff hanger with these questions left unanswered; however, Judge Sarokin leaves no doubt in Part 3, 'The Case of the Missing Transcript Solved,' where he outlines ten "uncontroverted facts upon which the [appellate] court could reach a determination that the right against self-incrimination was actually violated by the trial court even without the critical transcript."
"As an experienced and renowned retired federal judge, Judge Sarokin drew logical conclusion based on the facts in the IRP6 case and full reviews of the transcript and court documents. His position is substantiated by years on the bench as a District as well as an Appellate judge," says Banks.
Judge Sarokin maintained that "the Court of Appeals certainly [had] enough evidence to conclude that the right against self-incrimination indeed was, violated by the trial court; that defendants reasonably believed that at least one of them was required to testify in order to have the defense remain open; and that they succumbed to that threat, and immediately voiced their objections. Lacking any competent evidence to rebut those claims of constitutional violations, the claim of the defendants must be recognized as valid -- even without the missing entry in the transcript," stresses Sarokin.
The Tenth Circuit Court of Appeals referenced the district court's position regarding the missing transcript and stated, "...[t]he court "has acknowledged that a portion of the sidebar was not transcribed." Id. at 431 (Order Rejecting Proposed Stip., filed Oct. 16, 2012); see R., Vol. 1, at 1591 (noting that a "portion of the sidebar was not transcribed by the court reporter"). As the court has put it, "[f]or whatever reason, whether the parties spoke too far from the microphone or the court reporter took off her headphones, the court reporter did not hear everything that was said at the sidebar and therefore did not transcribe anything besides what is contained in the edited transcript," (D.C.No. 1:09-CR-00266-CMA, Appellate Case: 11-1492, Document: 01019289332, 8/4/14).
Though the Tenth Circuit's three-judge panel of Baldock, Hartz and Holmes would later uphold the lower court decision, stating the stand was taken voluntarily, despite the 'uncontroverted facts' to the contrary. The opinion by the Appellate Court failed to address the missing transcript, except to state, "...[t]here is no substantive difference between the unedited transcript and the final, official version...therefore, no 'missing transcript,' and nothing relevant to what occurred during the bench conference has been destroyed..." (D.C.No. 1:09-CR-00266-CMA, Appellate Case: 11-1492, Document: 01019289332, 8/4/14).
"The assertion by the court of appeals that there is no difference in the unedited and final versions of the transcript stands in strong agreement with the conclusion of Judge Sarokin and Judge Jackson: Judge Arguello said something that is not on the record, any record; thus, the Appellate Court could not definitely state whether a violation of IRP6's right against self-incrimination occurred," says Stewart. "Judge Jackson is on record in the civil proceeding stating that something was omitted. It is still baffling that the Court of Appeals disregarded this evidence and never demanded further investigation prior to upholding the lower court's decision," concludes Stewart.
"If something was said that compelled the IRP6 to take the witness stand and that portion of the transcript happens to be missing, shouldn't due process demand that the appellate court reverse the lower court's decision? I think this is what Judge Sarokin was asserting in his writings about the IRP6," states Banks. Instead, the court of appeals states that Mr. Barnes (IRP6) 'voluntarily' took the witness stand therefore his Fifth Amendment rights were not violated (D.C.No. 1:09-CR-00266-CMA, Appellate Case: 11-1492, Document: 01019289332, 8/4/14). How does the court know for certain whether it was voluntary or coerced if the record is missing? How does the Appellate Court skirt the opinion Judge Jackson wrote in the civil suit, which stressed that 'something was said [by Judge Arguello] that does not appear in the transcript?" questions Banks (Case 1:13-cv-02260-RBJ Document 39 Filed 05/09/14 USDC Colorado, Page 8). Case law in the 10th Circuit (U.S. v Haber) states a case must be reversed "...when the unavailability of a transcript makes it impossible for the appellate court to determine whether or not prejudicial error was committed with regard to a challenged action," (U.S. v Haber, No. 99-4088, May 24, 2001).
In the face of the Appellate decision that was handed down, Judge Sarokin disappointedly pens the final part of the five-part series in the Huffington Post, entitled 'The Case of the Missing Transcript Faces Another Defeat.' In it, he writes, "Today is a sad day for me and certainly for the defendants and their families in the IRP6 Colorado case. The Court of Appeals has affirmed their convictions, but I still cannot shake my belief that an injustice has occurred in respect to their guilt. Apart from all that I have already said in the past about this case in particular, there is the fact that every day we read of corporate fines for criminal activities, but no personal charges against the executives who directed or approved those crimes no matter how great the losses -- both personal and financial -- or how many persons suffered from them," (http://www.huffingtonpost.com/judge-h-lee-sarokin/deaths-caused-by-corporat_b_5348182.html).
Judge Sarokin laments the stiff sentences in a case of failing to pay corporate debt, stating, "The government's contention that their business was nothing but a scam defies reality," and proceeds to ask a series of common sense questions, "If a scam, would you single out law enforcement agencies as your sole customers? Would you work for years developing the program? Would you leave other gainful employment to join in the venture? Would you hire former law enforcement personnel to work on the project? Would you spend your own time and money for years to improve it? Would you personally guarantee the corporate debts and risk your own financial security? If a scam, wouldn't the perpetrators make some money out of it? The only possible way that the defendants could profit was if the company were a success!" affirms Sarokin.
He concludes his five-part series with the overwhelming conclusion, "The government proved that the defendants incurred debts and did not pay them, but it failed to prove that they did not intend to pay them when incurred, because that was not their true intention. Now, although all of the legal arguments have been neatly sewn up and put aside, I cannot help but believe that the fabric of justice has been frayed in the process."
"It is remarkably rare for a retired former appellate judge, or any judge for that matter, to break ranks and speak to a case, on the record as Judge Sarokin has on behalf of the IRP6. He speaks from the bench, though he is technically off the bench, but he speaks for justice. His heart and his conscious bid him speak to this injustice," declares Banks.
The IRP6 are family men, who supported their local church and volunteered in the community. They are now serving stiff sentences of 87 to 135 months. "They deserve justice. A Just Cause will continue to expose the injustices in this case and pursue every means to secure their release and freedom," concludes Banks.
To read Judge Sarokin's May 2015 email letter in support of the IRP6 go to: http://media.wix.com/ugd/c392f0_4e19334e663c49628bdc8fc904f8c630.pdf
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/#!2015-press-releases/cl69

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