SOURCE: A Just Cause

A Just Cause

August 13, 2015 11:12 ET

The Same Prosecutorial Ruse Used in the IRP6 Case Is Challenged by Former Justice Department Executives Before the Supreme Court, Says Advocacy Group, A Just Cause

Prosecutor's Concealment of Transcript Takes Center Stage as Ex-Justice Department Dream Team Files Supreme Court Brief Against Their Colleagues' Misconduct

DENVER, CO--(Marketwired - August 13, 2015) - "In October 2014, the Supreme Court of The United States denied to hear the IRP6's case (United States v. Banks, et. al, No. 14-229) where the brief sets forth facts that federal prosecutor Matthew T. Kirsch and Judge Christine M. Arguello conspired to violate the Constitution by concealing and/or destroying court transcripts and excluding key witness testimony that would have harmed the prosecution's case," says Lamont Banks, A Just Cause.

According to the New York Times, another case with a strikingly similar instance of prosecutorial misconduct, (Georgiou v. United States, No. 14-1535), has reached the high court. This time in a brief, filed by a dream team of Ex-Justice Department executives, where they allege that prosecutors concealed a transcript and reports from a key witness that could have damaged the prosecution's case. The brief states that the win-at-any-cost approach by prosecutors "contributes to a harmful notion that the criminal justice system is a game, and that victory rather than justice is a prosecutor's goal."

"Prosecutors concealing evidence to win convictions has become the norm in the U.S. Justice System," says Lamont Banks, "and a tipping point has been reached when former justice department executives are taking their colleagues to task on misconduct. Unfortunately, most judges, as we have witnessed in the IRP6 case, are functioning as if they're impotent and incapable of reining in prosecutorial misconduct."

The Times reports that the Justice Department dream team is comprised of 20 former Justice Department officials from the Obama, Reagan, Clinton and Bush Administrations, including Reagan Attorney General, Michael Mukasey, Obama Solicitor General, Seth P. Waxman, Obama's White House Counsel, Greg Craig, Clinton's acting Solicitor General, Walter Dellinger, Bush Deputy Attorney General, Larry Thompson, Clinton Deputy Attorney General, Jamie Gorelick, Bush's acting Attorney General, Peter Keisler, and Obama's acting Solicitor General, Neal K. Katyal, who is representing Mr. Georgiou.

The misconduct in the Georgiou case was the prosecutors' failure to provide a transcript and report that showed his business partner, (Kevin Waltzer), who was a key witness, had turned government informant and had been taking drugs to combat mental health problems, including anxiety, depression and bipolar disorder. Unapologetic prosecutors blamed defense attorneys for not being diligent enough to locate the documents. Keisler stated that the Supreme Court should hear the case to vindicate a fundamental principle. "The essential role of a government prosecutor is to seek justice, not simply or always to win convictions," says Keisler. "That role requires the prosecutor, in order to help ensure a fair trial, to make broad disclosure to a criminal defendant of the information the government possesses. The decision challenged in this case weakens enforcement of that fundamental requirement," Keisler elaborated.

"In the IRP6 case, AUSA Kirsch engaged in prosecutorial misconduct when he concocted and carefully executed a ruse to have defense witnesses that would damage his case excluded from testifying. The law was clearly not on his side, but sadly, Judge Arguello and the U.S. Tenth Circuit Court of Appeals supported him in his misconduct," says Lisa Stewart, A Just Cause.

The IRP6 case concerns six Colorado software executives, (David A. Banks, Clinton A. Stewart, Kendrick Barnes, David A. Zirpolo. Demetrius K. Harper and Gary L. Walker), of the IRP Solutions Corporation who developed Case Investigative Life Cycle (CILC) criminal investigations software for federal, state and local law enforcement. In 2011, the IRP6 were wrongly convicted of mail and wire fraud charges in a federal court in Denver, Colorado.

Court records show that AUSA Kirsch objected to the IRP6 expert witnesses testifying on the basis of Rule 16 violation. Rule 16(b)(1)(c) of the Federal Rules of Criminal Procedure, Expert Witnesses, requires that a defendant, at the government's request, must give to the government a written summary of any testimony that the defendant intends to use as evidence at trial, IF AND ONLY IF the defendant first requests disclosure of government expert witnesses. "The government didn't have any expert witnesses; therefore, we never requested or had a reason to ask the government to disclose anything about expert witnesses," says David Banks (IRP6). The IRP6 Supreme Court brief, cited the 2008 and 2009 U.S. v. Nacchio opinions issued by the U.S. 10th Circuit Court of Appeals. The 2008 three judge panel stated that, "it bears to mention that a defendant is NOT required to file a Rule 16 disclosure unless the defendant has made a similar request of the government... and the government has complied." The 2009 en banc Nacchio opinion confirmed the 2008 decision, saying, "Rule 16 does not require experts in criminal cases to provide written reports explaining their opinions or to make a written proffer containing the information required in civil rules." The brief also cited other 10th Circuit cases that indicate Judge Arguello and 10th Circuit ignored their own precedent, including U.S. v. Charley, 151 F.3d 1251(10th Cir. 1999) and U.S. v. Golyansky, 291 F.3d 1245 (10th Cir. 2002), where the Court held that exclusion of a witness is almost never imposed absent a constitutional violation, statutory authority, or bad faith on part of the defendants.

"It is hard to imagine how the AUSA Kirsch and Judge Arguello allowed the violation of my client's right to a proper defense by denying the testimony of two expert witnesses on the basis of Fed. R. Crim. P. 16. The government acknowledged receipt of the witnesses' credentials and the names of the expert witnesses were provided on the witness list prior to the commencement of the trial proceedings," says IRP appellate attorney, Gwendolyn Lawson. "The IRP6 were denied a fair trial and have spent three years in prison because judges don't have the courage, moral conscience or political will to oppose government prosecutors. The IRP6 suffered abuse from the prosecutor, judges and FBI," exclaims Lawson.

The June 30, 2015 Wall Street Journal Law Blog reported that Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals, an outspoken critic of prosecutorial misconduct, discussed his concern about the reluctance of judges to blow the whistle on prosecutorial abuse in the Georgetown Law Journal. "Defense lawyers who are found to have been ineffective regularly find their names plastered into judicial opinions, yet judges seem strangely reluctant to name names when it comes to misbehaving prosecutors. Indeed, judges seem reluctant to even suspect prosecutors of improper behavior, as if they were somehow beyond suspicion. Naming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional rights," said Kozinski.

Court records in the IRP6 case also show that all six pro se defendants swore in affidavits that Judge Christine M. Arguello forced them during a sidebar to take the stand against their will under the threat of canceling their defense. The record reflects Judge Arguello denied compelling them to testify, saying she didn't "know what her exact phrasing was," and refused to provide the unedited transcript at the request of the defendants to prove what was said.

Retired Federal Judge, the Honorable H. Lee Sarokin of the 3rd U.S. Circuit Court has been an outspoken critic of the prosecutor, judge and 10th U.S. Circuit Court of Appeals for failing to turn over court transcripts of a sidebar where the IRP6 defendants claimed that Judge Arguello forced them to testify against their will. Sarokin wrote a five-part series on the Huffington Post called "The Case of The Missing Transcript."

After reviewing court transcripts, Judge Sarokin recognized the fact that the IRP6 immediately caucused following the sidebar before taking the witness stand. Sarokin also questions why the prosecutor, shortly after one of the IRP6 defendants took the stand, wanted clarification that the defendants intended to testify despite the judge's comments at the sidebar. "Clearly," Sarokin says, "he [the prosecutor] was concerned about the Court's comments at the sidebar," and that the defendants may have construed them as coercive. "The failure to have a record of that conversation must be laid at the feet of the court or the government... [neither] the court reporter or the U.S. Attorney provided an affidavit or testimony of what they recall being said by the Court nor denying what the defendants claim was said by the court. This omission by the U.S. Attorney speaks volumes," Sarokin adds.

"With all of this uncontroverted evidence, the Court of Appeals certainly has enough evidence to conclude that the right against self-incrimination indeed was violated by the trial court; that defendants reasonably believed that at least one of them was required to testify in order to have their defense remain open; and they succumbed to that threat, and immediately voiced their objections. Lacking any competent evidence to rebut those claims of constitutional violations, the claim of the defendants must be recognized as valid -- even without the missing entry in the transcript," Sarokin concluded.

"I was not only disturbed by the condescending tone of the opinion as it relates to the IRP6's complaints about the missing transcript, but also the judges' cavalier disregard for case law supported in the Tenth Circuit provisions for court reporting procedures and the Constitution," says Gwendolyn Lawson, IRP6's appellate attorney. "Judges Baldock, Hartz and Holmes ignored the elephant in the room and issued a jumbled explanation regarding the transcript," adds Lawson.

On page 43 of the 10th Circuit opinion in the IRP6 case, the appellate panel says that even if they assume that Judge Arguello violated the defendants' constitutional rights and forced them to testify against their will, they could not prevail on the appeal because the pro se defendants could have called FBI Agent John Smith, who was listed on their witness list and in the courtroom seated next to Kirsch. "What a flimsy, disgraceful justification by judges who took the oath to uphold the Constitution and respect the rule of law," says Lawson. "Those judges are fully aware that every person on the witness list is not always called to testify. In fact, the prosecutor rested his case early without calling all of the witnesses on his witness list. Furthermore, if Agent Smith had been called and his direct and cross-examination combined took 20 minutes, an IRP6 defendant still would have succumbed to Arguello's threat and took the stand thereafter. The panel's deficient legal calculus doesn't resolve the constitutional violation perpetrated by the judge," argues Lawson.

"The Supreme Court opinion in 1974 U.S. v. Nixon case said that the exclusion of criminal defense evidence undermines the central truth seeking aim of the criminal justice system because it can deliberately distort the record and risk misleading the jury into convicting an innocent person," says Lamont Banks. "Prosecutors understand this, but it doesn't matter to them when their only goal is to win a conviction. I hope the Supreme Court agrees to hear the Georgiou case and our fight continues to free the innocent IRP6 who lost their freedom because of a win-at-any cost prosecutor, dishonest trial judge and crony appellate panel," concludes Banks.

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