"It always seems impossible until its done" - Nelson Mandela
Denver, Colorado (PRWEB) November 05, 2013
Court records show that the United States Court of Appeal for the Tenth Circuit recently denied a Writ of Mandamus filed by Appellant Attorney Gwendolyn Solomon on behalf her clients, the IRP6. The motion requested 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 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 that the filing is a “frivolous mandamus petition”. (Appellate Case: 13-1416 Document: 01019142130, Case 1:09-cr-00266-CMA, 10/16/13 USDC Colorado)
“The 10th Circuit, in denying the Writ, states that the 'mandamus petition is frivolous because we are seeking relief we have already sought, or could have sought, in our appeals'”, asserts David Banks, IRP Solutions COO and IRP6. (Appellate Case: 13-1416 Document: 01019142130, Case 1:09-cr-00266-CMA, 10/16/13 USDC Colorado) “Isn't that what a mandamus petition is for?”, argues Banks. “Court records will show that we repeatedly sought relief during trial and after trial from the district court to provide us with the transcript”, continues Banks (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 and 11-1492). Banks reflects, “No relief was granted. We sought relief from the 10th Circuit Court of Appeals through post-conviction motions and no relief was granted. We sought relief through our appellate briefs and the 10th circuit, ignoring their own precedent, granted no relief. Now when we seek relief again from the 10th Circuit through a Writ of Mandamus, no relief is granted” (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 and 11-1492).
Court records confirm that Attorneys Gwendolyn Solomon and Charles Torres made repeated requests for the verbatim transcript along with requests for inspection of the unedited transcript to ascertain the alleged actions during the bench conference on October 11, 2011, 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 the 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)
10th Circuit precedent for a missing or unavailable transcript states that reversible error occurs "when the unavailability of the 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 251 F.3d 889 (10th Cir. 2001)).
“Given 10th Circuit precedent, I have to wonder how the 10th Circuit Court of Appeals can make a determination about the actions of Judge Arguello, where we allege, and strongly feel, that our Fifth Amendment was violated”, contends Banks. “The court can't make a determination without the verbatim transcript, so it then makes me ponder why six innocent men have spent 25 months in prison, and are still separated from our families”, Banks maintains.
“It is an indictment of this country's criminal justice system when 11 months have passed and the court of appeals has not been prompt in remedying this situation where a controversy is brewing over the alleged disappearance of over 200 pages of our trial transcript”, states Gary Walker, IRP6 and CEO IRP Solutions Corporation (Appellate Case: 13-1416 Document: 01019142130, Case 1:09-cr-00266-CMA, 10/16/13 USDC Colorado). “While our country's leaders profess that this system is the best in the world, it is my experience that it is rife with attitudes of win at all costs and the constitution be damned”, declares Walker.
“It is astounding that the courts would deny this motion when the court records show that dialogue occurred in open court between the judge (Judge Christine Arguello) and Court Reporter Darlene Martinez to substantiate that 200 pages of the transcript of the court proceedings was allegedly omitted”, asserts Sam Thurman, A Just Cause. “It is the position of A Just Cause that this is a clear violation of due process and we call on the 10th Circuit of the U.S. Federal Courts to act expeditiously to correct this error”, petitions Thurman. “Records show that the IRP6 appeal was filed 11 months ago and there is still no ruling. (Appellate Case: 13-1416 Document: 01019142130, Case 1:09-cr-00266-CMA, 10/16/13 USDC Colorado). The seemingly lack of a sense of immediacy on the part of the courts is very concerning in situations like this, especially when attorneys have done their due diligence and identified alleged procedural and constitutional errors”, concludes Thurman.
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).
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 the entire manuscript of the IRP6 comments regarding the denial of the Writ of Mandamus, 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