Injustice anywhere is a threat to justice everywhere.Martin Luther King, Jr.
Denver, Colorado (PRWEB) October 17, 2013
Court records show that on October 8, 2013, 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 transcript in the IRP6 case. The Writ of Mandamus filed by Solomon requests that the 10th Circuit 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)
Attorney Solomon requested that Judge Christine Arguello, Court Reporter Darlene Martinez, and District of Colorado court clerk employees Charlotte Hoard and Ed Butler be ordered to answer to alleged violations of The Court Reporter's Act, which articulates, “28 U.S.C.A 753(b) makes it mandatory by Congress, that a court reporter shall record all proceedings verbatim in criminal cases held in open court which includes sidebars.” (Court Reporter's Act, 28 U.S.C.A 753(b))
Attorney Solomon further requested that the above mentioned parties be ordered to answer to alleged violations of the Due Process Clause of the Constitution for denying the IRP6 access to unedited transcripts, electronic, digital and audio recordings for the trial. (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 United States Constitution stipulates that no person shall “...be deprived of life, liberty, or property without due process of law.” (United States Constitution, Fifth and Fourteenth Amendments, and The United States Bill of Rights)
The Petition for Writ of Mandamus filed by Attorney Gwendolyn Solomon alleges breach of contract by court reporter Darlene Martinez for failing to attach her original shorthand notes or other original records to her official certificate and promptly file them with the clerk. (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)
A separate, but related, lawsuit filed by advocacy group A Just Cause asserts, “Ms. Martinez stated that those records (sidebar transcript from IRP6 case) no longer existed and had been destroyed. The negligent reporting practices of Ms. Martinez resulted in the omission of critical information, and made it impossible for her or her agency to produce a complete and accurate transcript of the proceedings. The criminal defendants in the underlying action were third party beneficiaries to the contract between (A Just Cause) and (Darlene M. Martinez) for the purchase of the transcript of the entire trial proceeding in United States v. Banks, et al., case number 09CR266.” (Civil Action No. 13-cv-02260-RBJ-KMT)
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)
Solomon submits in the petition, “Denying access to court files...given the statutory inspection rights granted by 28 U.S.C. 753(b), works an invidious discrimination which cannot past muster under the equal protection pregnant of the Fifth Amendment's due process clause when the important substantive constitutional right of access to the courts is implicated." (U.S. v. Hansen, 956 F.2d 245, 247, 11th Cir. 1992)” (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)
According to The Guide To Judiciary Policy Volume 6 (court reporting manual for federal courts), Section 140.25, Automated Court Reporter System Application, "The Automated Court Reporter Application (ACRA) automates the submission and archiving of court reporter data." (Guide to Judiciary Policy Volume 6). Section 115.10 of the Guide to Judiciary Policy affirms, "The Judicial Conference endorsed the use of real-time reporting technology by official court reporters in the districts courts". (Guide to Judiciary Policy Volume 6)
"With the technology that the Judicial Conference has made available to the courts, I can't comprehend the idea that the court transcripts are not available somewhere ", states Sam Thurman, A Just Cause.
The Petition for Writ of Mandamus for the IRP6 states, “The Fifth (or Fourteenth if a state is 18 involved) and Sixth Amendments concomitantly provide a criminal defendant the right to present a defense by compelling the attendance, and presenting the testimony, of his own witnesses. Washington v. Texas, 388 U.S. 14, 18-19 (1967); Serrano, 406 F.3d at 1213. This right is a fundamental element of due process of law. Webb v. Texas, 409 U.S. 95, 98 (1972).” (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)
Solomon asserts in the petition, “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 makes it impossible to perfect their appeal and deprives them of due process of law and warrants a reversal on their convictions.” (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)
"A Just Cause remains bewildered by length of time it has taken to reverse the IRP6's convictions when there is evidence to suggest that 200 pages of the transcript were omitted." says Thurman.
In the 2002 case of U.S. v. Stephens, 38 Fed. Appx. 998 the Fourth Circuit Court of Appeals took only 22 days to vacate a conviction where the missing portion of transcript was unavailable for a defendant to perfect his appeal. "The IRP6 situation mirrors that of the Stephens case, yet the IRP have been incarcerated for over 14 months now", asserts Thurman. "A Just Cause is exploring every available avenue to facilitate the exoneration of the IRP6", Thurman concludes.
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).
For more information about the story of the IRP6 or for copies of the legal filings go to http://www.freetheirp6.org. Appellate Court panel includes the Honorable Senior Judge Bobby R. Baldock, Honorable Judge Harris L. Hartz, and Honorable Judge Jerome A. Holmes
Related press releases: http://www.a-justcause.com/#!press-release/c21pq