SOURCE: A Just Cause

A Just Cause

April 16, 2015 09:55 ET

Advocacy Group, A Just Cause, Requests Federal Inquiry Into Missing Court Transcripts in IRP6 Case

A Just Cause Seeks to Reopen Investigation of Federal Court Reporter Involved in Missing Transcript in the IRP6 Case

WASHINGTON, DC--(Marketwired - April 16, 2015) - Advocacy group, A Just Cause, announces that it will reopen efforts to get a federal inquiry into the matter of a missing transcript in the federal trial involving executives of the Colorado-based company, IRP Solutions Corporation.

The IRP 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. (D. Ct. No. 1:09-CR-00266-CMA). The IRP6 have been incarcerated for nearly 36 months in federal prison in Florence, Colorado, while A Just Cause continues to review their case seeking grounds for exoneration.

"Recent events regarding missing transcripts in other cases has prompted A Just Cause to revisit the matter of the missing transcript in the IRP6 Case," says Sam Thurman, A Just Cause. "When we heard about the case at the state level in Texas, and saw how the state courts handled that matter, it made our team question why the federal courts shouldn't be as proactive and demand that Court Reporter Darlene Martinez turn over all of her records in the case of the IRP6," argues Thurman.

According to court records, the Fourteenth Court of Appeals in the state of Texas reversed and remanded two cases due to the court reporter's inability to produce court transcripts. In Bryant v. Texas (Co Crim Ct at Law No 8 of Harris County, 14-13-00922-CR) and in Markle v. Texas (Co Crim Ct at Law No 8 of Harris County, 14-13-00961-CR), the appellate court ordered new trials because court reporter Sondra Humphrey could not produce a complete record of those cases. Records show that there were numerous hearings on the issue, and Ms. Humphrey now faces jail time for contempt of court. According to per curiam opinion in the Bryant case, the Fourteenth Court of Appeals wrote, "Appellant's ability to present meaningful issues on appeal after a jury trial is severely limited in the absence of a reporter's record…We therefore conclude that the appellant has been harmed by the absence of a reporter's record. The trial court's judgment is reversed, and this cause is remanded for a new trial."

"If a state court can come to the conclusion that an appellant is harmed by a missing transcript, the federal courts should be able to come to that same conclusion, especially when there is strong evidence to support the argument," Thurman argues.

"The IRP6 have maintained the argument that their Fifth Amendment was violated during their trial in Oct 2011, but that the transcript to substantiate that argument is missing," conveys Thurman. "A Just Cause can in fact validate these occurrences based on legal action that our organization took to get the courts to release the transcripts, but we continually got stone-walled by the courts," Thurman adds.

 A Just Cause reviewed a sworn affidavit by Attorney Gwendolyn Solomon and found several inconsistencies in responses provided by federal court employees as to why the transcript was allegedly missing. According to the affidavit, Solomon spoke with Ms. Martinez (Court Reporter) on November 14, 2011 regarding the alleged missing transcript. Martinez advised Solomon that there was no policy, requirement, or rule that governs release of the unedited transcript but it was at her discretion to release the transcript (Case 1:09-cr-0026-CMA, Document 635-2, 12/20/11, USDC Colorado). On the same day Court Reporter supervisor Charlotte Hoard confirmed to Solomon that the unedited transcript was still available (for $3.05 per page) but that it was at the discretion of the court reporter to release it. Court documents show that Mr. Ed Butler (legal officer for the U.S. District Court of Colorado) was contacted by Solomon on December 12, 2011. He advised Solomon that he was informed by Martinez and Hoard that the unedited version of the transcript no longer existed. According to Solomon's affidavit, Mr. Butler further advised, "...nothing had been destroyed and suggested (Solomon) file a motion to request a copy of the unedited version." (Case 1:09-cr-0026-CMA, Document 635-2, 12/20/11, USDC Colorado)

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 (including sidebars). 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 Reporters Act, 28 U.S.C.A 753(b))

In the case of the IRP6, court records show that the IRP6 made repeated motions and requests to Judge Christine M. 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. (Case 1:09-cr-0026-CMA)

According to court documents, A Just Cause filed a civil lawsuit on behalf of the IRP6 asking the courts to require the trial court to produce the transcripts. Regarding reference to the sidebar where the Fifth Amendment violation is charged, the presiding judge in the civil case (Judge R. Brook Jackson) wrote, "[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 denying five defendants' motions for a judgment of acquittal or new trial based upon the alleged Fifth Amendment violation. [ECF No.753]…"Unfortunately," the court wrote, "this portion of the sidebar was not transcribed by the reporter." Id. at 14. The judge offered no explanation at that time as to why one of her statements was not recorded." (Case 1:13-cv-02260-RBJ, Document 39, Filed 05/09/14, USDC Colorado)

In part two of a six-part series for The Huffington Post regarding the IRP6 case, retired Federal Appellate Judge, the Honorable H. Lee Sarokin wrote, "[the] critical conversation (re: sidebar Fifth Amendment conversation) apparently was not recorded and was never included in the transcript for reasons unknown. But 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?" (Sarokin, H.L., The Missing Transcript Case Becomes More Curious, http://www.huffingtonpost.com/judge-h-lee-sarokin/the-missing-transcript-ca_b_5334328.html)

"In light of the opinion written by Judge Jackson in the civil case, he still did not order Court Reporter Darlene Martinez to produce the transcripts," Thurman confirms. "An interesting note from the civil case is that court records show that during one of the hearings Judge Jackson made the comment to the prosecution, '…[you want me to] explore the legal issues and see if we can get this thing dismissed on the law and not have to go down that road nobody will ever know what really happened' (Case 1:13-cv-02260-RBJ, 01/10/14, USDC Colorado). It's apparent that the judge recognized that something wasn't right about this case, yet he still dismissed the lawsuit, which is very disturbing," says Thurman.

"Aside from the civil action, the Tenth Circuit Court of Appeals even brushed past the matter of the missing transcript, and did not remand, reverse or dismiss, as Judge Sarokin suggested," says Thurman. "Bottom line is that the appellate panel didn't give significant consideration to the missing transcript, yet it is a major tipping point in this case," Thurman adds. According to court records the Tenth Circuit Court of Appeals decision states, "…[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,). "This type of rationale by the appellate court is not reasonable, especially when the civil court confirmed that something was said that was not recorded (transcribed). If something was not recorded, then it stands to reason that a significant portion of the trial proceedings is in fact 'missing', and due process was not exercised," Thurman adds.

"A Just Cause is reopening our investigation of this matter and reaching out to the respective judiciary committees at both the U.S. House of Representatives and the U.S. Senate, and other agencies seeking an inquiry," says Thurman. "A Just Cause believes that the IRP6 should not be incarcerated first of all, but when the system incarcerates people based on violating their Constitutional Rights, something is inherently wrong with that," Thurman concludes.

The case of IRP Solutions (IRP6) continues to be reviewed by A Just Cause (US District Court for the District of Colorado, 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 for the IRP6 case show that the appellate court three-judge panel for the IRP6 case included the Senior Judge Bobby R. Baldock, Judge Harris L. Hartz, and Judge Jerome A. Holmes (Judge Holmes wrote the opinion)For more information about the story of the IRP6 or for copies of the legal filings go to http://www.freetheirp6.org

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