Why Are Six Executives Still In Federal Prison While Courts Haggle Over Missing 200 Pages of Court Transcript, Asks Advocacy Group, A Just Cause

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Why is there no decision yet in IRP6 case with over 200 pages of court transcript missing, while six men sit in prison for two years awaiting appellate decision amid federal judge’s admission of withholding the transcript?

Free The IRP6

Justice will not be served until those who are unaffected are as outraged as those who are.― Benjamin Franklin

Advocacy group, A Just Cause, questions why six IT executives (IRP6) in Colorado are still incarcerated while the courts debate the issue of 200 pages of missing transcript tied to their appeal.

Court records from the criminal trial of the IRP6 show that the IRP6 argued that their Fifth Amendment was violated and that the transcript to substantiate the violation is missing. Court records 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 wrote recently in The Huffington Post regarding the IRP6 case and the missing transcript. (http://www.huffingtonpost.com/judge-h-lee-sarokin/the-case-of-the-missing-transcipt_b_5267338.html). “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”, writes Judge Sarokin. “The answer lies in the record, which apparently does not exist, for reasons that seem to be elusive. The case raises numerous other serious questions about the prosecution, conviction and incarceration pending appeal of these defendants, but my comfort level limits me to this one strange mystery: the missing transcript," posts Judge Sarokin. (http://www.huffingtonpost.com/judge-h-lee-sarokin/the-case-of-the-missing-transcipt_b_5267338.html)

In an early 2014 radio interview, former Ohio state Attorney General stated, “If there was a legitimate argument that could be made by the defense counsel on the appeal that there is a missing transcript, (that) becomes error that is no longer harmless, then I think the appellate court has a responsibility to act on this very quickly," stated former Ohio Attorney General Jim Petro. (AJC Radio Interview, http://www.ajcradio.com, January 28, 2014). “I can’t imagine that part of the record that might be significant and meaningful in terms of guilt or innocence, if it’s missing I think the appellate court has a duty to act with all deliberate speed," added Petro (AJC Radio Interview, http://www.ajcradio.com, January 28, 2014).

The IRP6 case concerns a Colorado-based company (IRP Solutions Corporation) 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 (D. Ct. No. 1:09-CR-00266-CMA). The IRP6 have been incarcerated for two years in federal prison in Florence, Colorado while their case is under appeal (Case Nos: NO. 11-1487, Case Nos. 11-1488, 11-1489, 11-1490, 11-1491 and 11-1492).

In a recent civil action regarding the missing transcript, court documents state, “…there is no dispute that something was said that does not appear in the transcript. Judge Arguello addressed the incompleteness of the transcript of the bench conference in a written order issued on June 28, 2012…[ECF No.753].” (Case 1:13-cv-02260-RBJ Document 39 Filed 05/09/14 USDC Colorado, Page 8)

In court documents in the civil case regarding the 200 pages of missing transcript, the government argued, “A judgment in Plaintiffs’ favor would necessarily invalidate the Banks defendants’ convictions.” (Case 1:13-cv-02260-RBJ Document 37 Filed 04/18/14 USDC Colorado Page 3) “If there is any evidence that could result in correcting a wrongful conviction, in the spirit of due process, shouldn’t it be allowed?" questions Sam Thurman, A Just Cause.

Court documents from a January 2014 hearing show that Judge R. Brooke Jackson posed 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…” (Case 1:13-cv-02260-RBJ Document 37 Filed 04/18/14 USDC Colorado Page 19) “I have to reiterate that when dialogue occurs in court that points to ‘the possibility’ that a person’s rights might be violated, that should weigh very heavily, and again makes one wonder how six men can be in prison with over 200 pages of court transcript missing?," ponders Thurman, A Just Cause.

“This week an assessment of this case was done by David Banks (IRP6) and posted as a blog to freetheirp6.org," says Thurman. “Mr. Banks used the age old adage KISS (Keep It Simple Stupid) to assess several aspects of where the courts are today with this case," adds Thurman. “Mr. Banks even points out that there is case law in the 10th Circuit (U.S. v Haber) that 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, http://caselaw.findlaw.com/us-10th-circuit/1054132.html ). “So this makes AJC pose the question, ‘Why are these men still in prison,'" Thurman concludes.

“A Just Cause has spoken to professional litigators across the board about the IRP6 case and the response is consistent in that they have never seen a case like this," states Thurman. “When you take into consideration a case where there are over 200 pages of transcript, one has to acknowledge that it is an unusual situation. A Just Cause took a snapshot of 19 cases submitted to the 10th Circuit during the same time as the IRP6 case and most of those case were decided well within a 90 day time period. We took a look at decision so far in 2014 and found that the court has decided nearly 400 cases (https://www.ca10.uscourts.gov/opinion/search/results?page=22&query=start%3A1/1/2014%2C%20end%3A5/14/14). The breadth of every case is not known, but I would venture to say that it is highly unlikely that any of them includes over 200 pages of a transcript missing. A Just Cause is seeking support from retired judges, attorneys, pro bono attorneys, and lay people alike to push public awareness of this case," concludes Thurman.

The Appellate Court panel in the IRP6 case includes the Honorable Senior Judge Bobby R. Baldock, Honorable Judge Harris L. Hartz, and Honorable Judge Jerome A. Holmes.

The Honorable H. Lee Sarokin is now retired but served on the United States District Court (N.J.) appointed by President Carter, and the United States Court of Appeals (3rd Cir.) appointed by President Clinton. He retired in 1996 after 17 years on the federal bench. Judge Sarokin is well-known for his participation in the Rubin “Hurricane” Carter appellate case, reversing Carter’s conviction of a triple murder. Judge Sarokin is a contributor to the Huffington Post (http://www.huffingtonpost.com/judge-h-lee-sarokin/).

Related press releases: http://www.a-justcause.com/#!press-releases/c21pq

A Just Cause is requesting support for a petition regarding the IRP6 case transcript: http://www.change.org/search?_csrf=ec36ee5b5cc728be235b55d1bce8c58a&authenticity_token=ec36ee5b5cc728be235b55d1bce8c58a&q=irp6

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