“Mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process.” Justice Thurgood Marshall (www.thinkexist.com)
Denver, Colorado (PRWEB) May 07, 2013
A Just Cause and Friends of Justice have been investigating a Colorado federal criminal case involving six businessmen believed to have been wrongly convicted. “This is a case involving six executives of a software development company called IRP Solutions Corporation,” says Sam Thurman of A Just Cause. “A Just Cause, Friends of Justice and other advocates for the defendants refer to the case as the IRP6 (http://www.freetheirp6.org)," adds Thurman. Court records show defendants as Kendrick Barnes, Gary L. Walker, Demetrius K. Harper, Clinton A. Stewart, David A. Zirpolo and David A. Banks.
After reviewing court records, A Just Cause and Friends of Justice are convinced that this case represents the dark side of our justice system. "This is a story about how prosecutorial tunnel vision created a tragic communication failure," says Dr. Alan Bean, Executive Director, Friends of Justice.
"Anyone that looks at this case says that it should have been handled as a civil matter from the very beginning. We trust that the appellate process works to give justice to the IRP6," says Thurman. "Court documents even show an FBI letter dated August 8, 2005 from Supervisory Special Agent Jean Andersen, Denver Division, replying to an alleged victim of the IRP case, that it was a civil matter and there was no basis for criminal action," adds Thurman. But, Assistant United States Attorney Matthew Kirsch pursued prosecuting the case. According to a 2005 search warrant affidavit, the men were accused of mail and wire fraud. The indictment did not come until June, 2009. Trial and conviction occurred in 2011.
According to court documents, the six Colorado businessmen developed software which could be used by law enforcement agencies like the Department of Homeland Security and the New York City Police Department.
Trial records show that the men defended themselves pro se. "Our court appointed attorneys were not doing their job to put together a viable defense," says Gary Walker, CEO, IRP Solutions Corporation. "They wanted us to do a plea deal," Walker adds. The case is currently under appeal based on Fifth Amendment Prohibition of Compulsory Testimony, Sixth Amendment Right to Present a Defense and Speedy Trial Act Violation.
The prosecution rested its case nearly a week and a half earlier than anticipated. As a result, defense witnesses were not available to testify. During a sidebar discussion, Judge Christine M. Arguello stated that the defendants would need to take the stand or she would rest their case for them. “If we didn't take the stand and the judge rested our case, it would have eliminated any opportunity to present a complete defense,” recalls David Banks, COO IRP Solutions Corporation.
When the defendants requested the transcripts for the date of October 11, 2011, they discovered the sidebar discussion was missing. “That short sidebar discussion implicates Judge Arguello making statements that violated our Fifth Amendment right against being compelled to testify in a criminal trial,” says Banks. "We had absolutely no intention of testifying. We were forced to either testify or kiss our defense goodbye," Banks adds. "This makes you step back and say, 'What? In America? This happens in America?'"
"The Court Reporters Act, 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", says Attorney Gwendolyn Solomon (attorney for five of the six defendants). According to Solomon the statute reads, "...all original notes are required to be preserved and available in the clerk’s office. The reporter or other individual designated to produce the record shall attach his official certificate to the original shorthand notes or other original records so taken and promptly file them with the clerk who shall preserve them in the public records of the court for not less than ten years."
Court records show repeated motions and requests by defendants to Judge Arguello for the unedited version of the sidebar transcripts, but all requests were denied by the court. Subsequently, multiple 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 Arguello. "I made several attempts to obtain the transcripts from the clerk's office, but have been continually told by the court reporter and the clerk's office that the sidebar portion is unavailable," says Ethel Lopez of A Just Cause. “We believe that this critical piece of the transcript was deliberately destroyed or purposely not being provided to protect the Judge," adds Lopez.
"Mr. Dorschner (Public Relations Officer for the U.S. Attorney's Office in Denver) told me that we should file a lawsuit against court reporter Darlene Martinez," says Tanique Wright of A Just Cause.
“A Just Cause is planning to assist with any lawsuit that is filed against Ms. Martinez," Thurman adds. “A Just Cause feels that destruction of court records is a criminal act to obstruct justice and we will continue to seek relief from the Department of Justice," says Thurman.
"It seems that there is no accountability when something like this happens (court records missing) so A Just Cause has sought assistance from both Congressman Doug Lamborn (R- Colorado , 5th Congressional District) and Senator Mark Udall (D - Colorado) to inquire into this matter," Thurman concludes. A Just Cause has also made request of the United States Attorney John Walsh (Denver) to investigate the matter regarding missing transcripts, but those requests have been denied.
For more information about the story of the IRP6 or for copies of the legal filings go to http://www.freetheirp6.org . For more information on the ongoing appeal or A Just Cause, contact Sam Thurman at (877) 573-5554 or visit http://www.a-justcause.com.
Related story: Racial Bias Is the Foundation for a Federal Criminal Case Against African American Businessmen in Colorado http://www.prweb.com/releases/2013/5/prweb10693207.htm
(Case of the IRP 6 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 and 11-1492)
Note: A Just Cause is collaborating with Jabar International on the development of documentary telling the IRP Story - "What Color Is The American Dream? The IRP6 Story: An American Dream Turned Nightmare" (available on YouTube).