SOURCE: A Just Cause

A Just Cause

August 25, 2015 08:16 ET

Judges Continually Use Bad Law as an Excuse to Send the Innocent to Prison, Says Advocacy Group, A Just Cause

A Just Cause Questions Why IRP6 Prosecutors and Judges Allowed the Innocent to Go to Prison

DENVER, CO--(Marketwired - August 25, 2015) - According to an Op-Ed by attorney Julie Seaman in the August 12, 2015 edition of the New York Times titled, "When Innocence Is No Defense," the Supreme Court of The United States has repeatedly declined to decide whether clear evidence of innocence entitles the wrongly-convicted to be freed from prison or given a new trial. "To the average citizen or anyone with a residue of humanity, it would be unfathomable that judges and prosecutors would be capable of imprisoning or failing to free a person they know to be innocent," says Sam Thurman, A Just Cause. "Sadly, this is not uncommon as you might think," adds Thurman. "It happened in the IRP6 case."

The IRP6 concerns six software executives from the IRP Solutions Corporation that developed Case Investigative Life Cycle (CILC) criminal investigations software. The "IRP6" (David A. Banks, Kendrick Barnes, Gary L. Walker, Demetrius K. Harper, David A. Zirpolo, and Clinton A. Stewart) were wrongly-convicted in 2011 of mail and wire fraud in a Denver federal courthouse (Case no. 09-CR-00266-CMA) and have been incarcerated for 3 years in a federal prison in Florence, CO.

The Times highlights a 2001 case in Savannah, Georgia, where a man, Sandeep Bharadia, was convicted and sentenced to life without parole for burglary and sexually assaulting a woman based on false testimony and mistaken witness identification. Bharadia maintained his innocence throughout, claiming he was 250 miles away in Atlanta. There was no physical evidence linking him to the crime. Blue and white batting gloves that were worn during the rape were found by police with an acquaintance of Bharadia, Stephen Flint, who agreed to testify against Bharadia after both men were charged with the crime, but prosecutors chose not to do DNA testing. The victim also identified Bharadia as her attacker. Instead of doing DNA testing, prosecutors chose to rely upon witness identification and Flint's testimony, both of which proved unreliable.

After trial, the Court approved DNA testing on the gloves based on a motion for new trial filed by the appellate attorney proved that the DNA inside the gloves did not match Mr. Bharadia, but shockingly, the Court denied to order DNA testing on Mr. Flint and no new trial was granted. Several years later, the Georgia Innocence Project took Bharadia's case and ran the DNA through the national CODIS DNA database. The DNA matched Mr. Flint's and Mr. Bharadia was innocent. Innocence Project attorneys filed for a new trial based on the new DNA evidence but were denied by the Court based on Georgia precedent that the DNA evidence could have been discovered at the time of the original trial, had Bharadia or his attorney been diligent enough. The trial court acknowledged that the DNA evidence "would probably produce a different verdict."

"What is most troubling about the Georgia Supreme Court's decision is that the issue of innocence becomes irrelevant if there has been a failure of due diligence," says Seaman. "In effect, the ruling elevates finality over justice to the point that an innocent person can be imprisoned, even executed because of errors made by his lawyer," adds Seaman.

"This is less a question of law but more about the lack of humanity that exists in our judges and prosecutors," says Cliff Stewart, A Just Cause. "I can't think of anything more vile, inhumane or contemptible than allowing an innocent person to be imprisoned when you, as a prosecutor, judge and human being have the power and full discretion to right that wrong," adds Stewart. "In the IRP6 case, Assistant United States Attorney Matthew T. Kirsch, Judge Christine M. Arguello, 10th Circuit appellate judges Briscoe and Murphy and 9th Circuit appellate judge Michael Hawkins all agreed to send Lawanna Clark, the sister of David Banks (IRP6), to prison by elevating finality over justice just like the Bharadia case," exclaims Stewart.

Court records show that in 2007, Lawanna Clark testified before the original grand jury (No. 06-01) in the IRP6 case where she answered 285 questions from the prosecutor. AUSA Kirsch indicted Lawanna Clark on perjury alleging that she lied on three of the questions. Ms. Clark hired Denver attorney Richard K. Kornfeld and went to trial. The jury convicted her of only one count of perjury.

According to Judge Arguello's January 19, 2010 opinion (Case no. 09-CR-00151-CMA), "the jury unanimously agreed that [Clark] committed perjury when she responded to the question, 'You never withdrew any money from the [IRP] bank account?' by testifying, 'No.'"

"It is unreasonable that Lawanna would lie about withdrawing money since she was an authorized signer on the account," says Sam Thurman. "Conveniently, Judge Arguello fails to mention that Lawanna also told the grand jury that her sister Yolanda Walker, wife of Gary Walker (IRP6) withdrew the money from the account with her authorization," adds Thurman.

"Prior to trial, I told Mr. Kornfeld that Lawanna had told the truth and I was prepared to testify that I withdrew the money from the bank account with her authorization," says Yolanda Walker. "During trial Yolanda, Lawanna and I discussed hiring a handwriting expert with Mr. Kornfeld but he said it was not necessary because he felt that Yolanda's testimony or the handwriting expert wouldn't be necessary because the jury had enough to rule in our favor," says David Banks (IRP6). "Although we were somewhat uncomfortable with Kornfeld's recommendation, we deferred to his judgment and that proved to be a colossal mistake for my sister," expounds David Banks.

Court records show that after trial, Lawanna Clark and her family hired Judith A. Housley, a Board Certified Forensic Document Examiner to examine the bank withdrawal slips that the government said was proof that Lawanna made the withdrawal and told the jury it was her signature on the slips. "We knew my sister was innocent and that Ms. Housley credentials were stellar as she had worked as an expert with the U.S. Attorney's Office," says David Banks (IRP6).

Court records show that both Lawanna Clark and Yolanda Walker provided handwriting samples to Ms. Housley for analysis. Housley concluded that the bank withdrawal slips did not "contain the known handwriting/signature of [Lawanna Clark]. Instead, they were consistent with the known handwriting/signatures of Yolanda B. Walker. "This was undeniable proof that Lawanna was innocent and told the truth to the grand jury," says Sam Thurman, A Just Cause. "Unfortunately, innocence did not matter to Kirsch, Arguello or 10th Circuit judges and their reason for denying a new trial was feeble," adds Thurman.

Under Rule 33 of the Federal Rules of Criminal Procedure, a motion for new trial (Doc. #43) was filed by Clark based on Housley's scientific findings which was opposed by Kirsch and denied by Judge Arguello. "The new evidence is not of such a nature that it probably produces an acquittal," says Arguello. "Defendant argues that this handwriting analysis, suggesting that someone other than the Defendant engaged in the at-issue-banking transactions, constitutes the type of evidence that would directly contradict a jury finding that Defendant lied regarding those transactions," continues Arguello. "That may be true but given the other evidence...Ms. Housley's handwriting analysis cannot be said to 'probably' produce an acquittal," opined Arguello.

According to the 10th Circuit's opinion, "the evidence could have been discovered earlier with due diligence was not likely to result in an acquittal. The jury could compare signatures addition, Clark's driver's license was noted on one of the withdrawal slips and the jury heard testimony that it was customary for banks to require photo identification for cash withdrawals such as those in this case."

"I was absolutely dumbfounded by the deplorable rationale in these opinions on the very simple issue of whether Lawanna lied about making specific withdrawals," says Banks. "First, it does not make sense for Lawanna to lie about withdrawing money from an account where she was authorized to do so," argues Banks. Second, if she answered 284 out of 285 (99.6) questions honestly, then what would make her lie on the question 285. Third, the only physical evidence set forth by the government to prove Lawanna lied was the signature on the withdrawal slips and that was scientifically disproved by an expert's handwriting analysis," expounds Banks.

"It is absolute folly that the 10th Circuit would elevate a juror's visual examination of handwriting over the scientific analysis and conclusions of a Board Certified Forensic Document Examiner," muses Banks. "In light of this incontrovertible evidence it is disgraceful for Kirsch, Arguello, Briscoe, Murphy and Hawkins to abjectly reason that a juror would not be able to decide whether Lawanna lied or didn't lie and that this new evidence is not likely to produce an acquittal, especially since they had already made that determination on two other counts," chides David Banks (IRP6).

According to Rule 33, even if a judge determines that newly discovered evidence was not presented because of a lack of due diligence, they can still grant a new trial if they feel a miscarriage of justice would occur. "If AUSA Kirsch, Judge's Arguello, Briscoe, Murphy, and Hawkins had any fidelity for the innocent or a heart for the wrongly-convicted, they would have granted Lawanna Clark a new trial," says Stewart.

In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court considered whether it violates due process or constitutes cruel and unusual punishment for a State to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be actually innocent. Justice Scalia in a concurring opinion, stated that "there is no basis in text, tradition, or even contemporary practice (if that were enough) for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. "If the Constitution does not provide a basis, humanity does," says David Banks (IRP6). "Many judges have become insensitive to the cruelty of an innocent person losing their life or liberty," adds Banks "and their indifference is a key reason the United States is the world's top incarcerator."

Lamont Banks, Executive Director of A Just Cause, was wrongly-convicted and spent 7 years in prison because of a conviction obtained by prosecutorial misconduct. The Colorado Court of Appeals ruled that El Paso County Assistant District Attorney Donna Bellick grossly "exceeded the bounds of fair questioning" and "so undermined the fairness of the trial, as to cast serious doubt on the reliability of the conviction."

"None of the charges held up in the case because I never committed the crimes they accused me of," says Lamont Banks "and I am thankful that the Colorado Court Appeals finally vacated my conviction. I just wish I hadn't lost 7 years of my life."

Rose Banks, Pastor of the Colorado Springs Fellowship Church and mother of David Banks (IRP6), Lamont Banks and Lawanna Clark, has had to suffer through the pain of three of her seven children being wrongly-convicted and imprisoned in Colorado. Both Lawanna and David suffered their wrongful convictions at the hands of Kirsch, Judge Arguello and the 10th Circuit Court of Appeals and Lamont with the El Paso County District Attorney's Office.

"My heart broke from grief when Lawanna came to me crying and saying 'Momma, I can't go to prison,'" reflects Rose Banks. "I saw the huge sacrifices made by David and the other men at IRP, many times working 18-20 hours days. When David would come to my house, he always talked to me while working on his computer and his phone never stopped ringing," says Banks.

"As a result of his wrongful-incarceration, Lamont now suffers severe back problems and diabetes. To add insult to injury, El Paso County District Attorney May has said he will fight Lamont's claim for damages because his case was overturned on a technicality," exclaims Banks. "I cannot express in words the immeasurable pain and suffering of the wives and children, whose loss of their husbands and fathers can, in many ways, be greater than those locked away in prison. If innocence really mattered in this country, my family would not have suffered such cruelty at the hands of these judges and prosecutors. Only by the grace and strength of God have we been able to survive this," concludes Rose Banks.

Contact Information

    A Just Cause
    (855) 529-4252 extension 703