Double Minded

February 6, 2014

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 What makes judicial officials struggle to do justice?

 

On October 11, 2011, David Banks, Gary Walker, Demetrius Harper, Clinton Stewart, David Zirpolo and Ken Barnes, who are now commonly referred to as the IRP6, were summoned to a bench conference at their pro-se criminal trial by federal judge Christine M. Arguello to discuss why one of their subpoenaed defense witnesses failed to appear.  The defense witness was Collin Reese, a veteran law enforcement agent of the Colorado Bureau of Investigation, who would clearly understand the legality and importance of abiding by a court-ordered subpoena.

 

The IRP6 attest that during the bench conference, an irascible Judge Arguello scolded them for not having a replacement witness for the negligent Agent Reese.  The IRP6 further attest that Judge Arguello coerced them to testify under the threat of resting their case by stating that if they did not have a replacement witness for Reese then one of them (the IRP6) would have to testify.  The Fifth Amendment of the United States Constitution protects a defendant from being compelled to testify in their own criminal proceeding. “We were unprepared, confused and in disbelief that we were being forced to testify,” reflects David Banks of the IRP6. “At the time I thought to myself, can she really force us to testify?  Is that legal.” says Demtrius Harper.  “Out of fear of not being able to complete our defense, we huddled together at our defense table contemplating which one of us should take the stand. 

 

Agonizing and unhappy about this predicament Judge Arguello had put us in, we finally decided that Ken Barnes would testify” recalls David Banks.  Court records show that while Ken Barnes was being cross-examined by Assistant United States Attorney (AUSA) Matthew Kirsch, Gary Walker objected and improperly pled the Fifth Amendment on behalf of Barnes.  “At some point we had to stand up and challenge being bullied to testify, even if that threatened our ability to complete our defense”, says Gary Walker.  All of this transpired in the presence of the jury.

 

Prior to the bench conference, Andrew Albarelle and Kelli Baucom, experts in the staffing industry were scheduled to testify for the defense. Gary Walker called Albarelle to the stand and begin with routine questioning about his background and qualifications. Albarelle was the CEO of a multi-million dollar international staffing company and also as a member of the FBI’s Infraguard.  Albarelle had previously worked closely with the FBI in investigations related to staffing fraud. Judge Arguello stopped Walker’s questioning of Albarelle reasoning that the government had not been properly notified about Albarelle.  Court records will show that both Albarelle and Baucom were on the witness list provided to the government as part of the pre-trial discovery conference. 

 

Emails sent by the IRP6 to U.S. Attorney John Walsh and AUSA Kirsch substantiate that the government was notified about Albarelle and Baucom.  In July of 2011, months before trial, both Albarelle and Baucom mailed letters to Walsh discussing the charges against IRP, examples of staffing industry practices and recommending that the case should be dropped because IRP actions were consistent with industry practices. After canceling the testimony of Albarelle and Baucom, Collin Reese was scheduled next to testify but did not show, which precipitated the bench conference where IRP attest that they were threatened by Judge Arguello to testify at trial. What were some of the jurors thinking about these events?

 

A Just Cause (AJC), a non-profit advocacy organization for judicial accountability located in Colorado Springs, Colorado, spoke with a juror after trial who was confused why Albarelle was no longer on the witness stand when they returned and was shocked to find Ken Barnes being called to testify.  The juror stated from what was heard in opening statements from the defendants (IRP6), none of them would be taking the stand. The jury also witnessed the objection by Walker pleading the Fifth Amendment on behalf of Barnes and after coming back from a recess they witnessed Barnes continually plead the Fifth Amendment through the remainder of cross-examination.

 

Court records show that Barnes notified the court prior to continuing the cross-examination that he would plead the Fifth Amendment.  Why did Judge Arguello allow Barnes to return to the stand when she knew he would take the Fifth and possibly contaminate the jury with repeated denials? Why was no explanation given why Albarelle did not continue his testimony?  Did the jury believe that Walker’s objection was an effort to stop Barnes from saying something incriminating himself or others of the IRP6? Did the jury believe that when Barnes returned to the stand and repeatedly pleaded the Fifth Amendment through the rest of cross-examination as he chose to no longer provide answers because he and the others were guilty? 

 

The juror’s comments to AJC certainly indicate those possibilities. The Fifth Amendment issue is one of the issues under appeal with the 10th Circuit. One can conclude based on IRP6′s attestation of the facts, none of these events with the Fifth Amendment would have ever occurred if Judge Arguello had not forced their testimony. Judge Arguello denied both on the record and in her written opinion that she ever improperly compelled the IRP6 to testify — opining that “…Defendants (IRP6) were attempting to perpetuate chaos in order to obtain a mistrial.” 

 

Prosecutors Kirsch and Suneeta Haza, who were parties at the bench conference failed to provide any definitive accounting of what they heard — tersely stating that it “was recorded”.  Given the dispute between Judge Arguello and the IRP6 of what actually occurred at the bench conference the IRP6 requested the transcript to resolve what was actually said — that is if court reporter Darlene Martinez or Judge Arguello would actually release it to the IRP6 in accordance with the law.

 

To resolve disputes and ensure the accuracy of events and statements in a criminal proceeding, Congress passed the Court Reporter’s Act (CRA), 28 USC 753(b), which states that all proceedings in criminal cases had in open court shall be recorded [by the court reporter] verbatim by shorthand, mechanical means, electronic sound recording or other approved methods. The CRA also states that the court reporter shall attach his official certificate to the original shorthand notes or other original records and promptly file them with the clerk of court who shall preserve them in the public records of the court for not less than ten years.  The CRA further states that the original notes or other original records and the copy of the transcript in the office of the clerk shall be open during office hours by inspection by any person.

Court records show that the IRP6 repeatedly made requests of the court for the 200 pages of unedited transcript during the course of trial. 

 

“First of all, the unedited version (of the transcript) cannot be used for any purpose…how many pages is it?” Judge Arguello says to Martinez. “Over 200 pages”, Martinez affirms. “Over 200 pages…for no purpose that I can see that would be served by having that at this time.” Arguello reasons. “I am not going to have an expedited and unedited version delivered to the defendants,” concludes Arguello. Others, including attorneys requested the transcript in a variety of ways.  Attorneys filed post-trial motions requesting the transcript and/or a hearing with the court reporter, contacting the court reporter directly, as well as going to the clerk of court to inspect the original record in accordance with the CRA. Ethel Lopez of AJC also visited the clerk of court to attempt to inspect the record and contacted the court reporter.  The clerk’s office would not allow inspection of the court reporter’s original record — giving various excuses such as it was up to the discretion of the court reporter Darlene Martinez, to it was missing, destroyed or unavailable.

 

Judge Arguello denied each and every motion for release of the verbatim transcript. Why won’t Judge Arguello, the clerk of court or Darlene Martinez turn over the transcript? Wouldn’t the transcript corroborate Arguello’s assertions of what she actually said or would it implicate her for lying repeatedly that she did not coerce the IRP6′s testimony? It is obvious why Judge Arguello can’t find a purpose, at least one that doesn’t expose her, for releasing the transcript. Martinez transcribed an edited transcript for IRP6′s appeal, but the 200 pages related to the bench conference were not included.

 

Given the suspicious actions of Martinez, Judge Arguello and the clerk’s office, how can anyone be certain the edited transcript provided by Martinez to the IRP6 is accurate? The IRP6′s next stop was the 10th Circuit Court of Appeals to request that the verbatim transcript be turned over to them.

 

If IRP6′s attestation about the Arguello’s statements at the bench conference were proven correct their case would have to be immediately reversed and they would have to be freed from prison. Judge Arguello would be disgraced and possibly have to resign her federal judgeship. Attorney’s appealed their post-conviction motions requesting the verbatim transcript to the 10th circuit but were denied.  In October of 2013, attorney Gwendolyn Solomon made another attempt to obtain the unedited transcript with the 10th Circuit by filing a Writ of Mandamus. 

 

The 10th Circuit audaciously called the Writ frivolous and denied the order for the release of the verbatim record nor did they order Martinez to file her original record with the clerk of court as required by the CRA. The 10th Circuit case of U.S. v. Haber, 251 F.3d 889 (10th Cir. 2001) states that a case should be reversed “when the unavailability of the transcript makes it impossible for the appellate court to determine whether or not prejudicial error was committed” with regard to a challenged action. 

 

If the IRP6 has made a challenge to a violation of their Fifth Amendment right based on Judge Arguello compelling them to testify at trial and both Arguello and Martinez have affirmed that the transcript is “unavailable”, why do the IRP6 remain in prison?  What causes judicial officials to shirk their responsibility to do justice and enforce a clear violation of the law?  What causes judicial officials to ignore their own precedent and allow wrongful imprisonment to endure?  Could it be that they are double-minded? Double-minded?

 

The King James Bible provides insightful analysis of what it means to be double-minded. St. Luke, Chapter 16, verse 13 states “No servant can serve two masters; for either he will hate the one, and love the other; or else he will hold to one and despise the other. You cannot serve God and mammon.”  Judges and prosecutors are considered public servants — tasked with the responsibility to serve justice for American citizens through enforcing the law and upholding the Constitution.

 

Unfortunately, too many judicial officials are failing the cause of justice because they serve two masters — the law and their self-interest.  Webster’s New World Dictionary defines a servant as “a person devoted to another or to a cause, creed, etc.”  For judicial officials to be fair, impartial and just they must have a singled-minded devotion to the cause of justice and the Constitution.  A judge or prosecutor with a double-mind who tries to duly serve their self-interest and the law cannot be relied upon to be fair and impartial. St. Luke 1:8 states “A double-minded man is unstable in all his ways.”

 

Anything unstable makes us very uncomfortable.  We don’t put our faith and trust in things that are shaky and unstable.  Who would trust an unstable babysitter looking after their kids or an unstable doctor providing medical advice or performing a surgical procedure? Certainly we would not want an unstable judge presiding over matters that threaten our very life, liberty and pursuit of happiness.  A double-minded judge or prosecutor concerned more about their image or winning a case than about the cause of justice are prone to be unstable in their judgment and discretion, resulting in wrongful convictions and judicial and prosecutorial abuse that destroy the lives of men, women and children. This double-mindedness is pervasive throughout our country and is why America’s citizens distrust our institutions of government.  We routinely witness double-minded governing by our politicians. They engage in double-talk and double-down on protecting their self-interests which are usually tied to special interests.

 

A double-minded person struggles to be decisive and routinely compromises their values. In the IRP6 case there has been a clear, inarguable violation of the law by court reporter Darlene Martinez but the courts refuse to make a decision because they are double-minded. They stand halted at an intersection of decision, evaluating the personal and institutional costs of reversing the conviction and freeing the IRP6 or allowing them to stay imprisoned to save their colleague and the justice system embarrassment from wrongful actions. They hide behind common knowledge that the judicial process generally takes time which is not plausible given circumstances surrounding the missing transcript.

 

The courts don’t have enough commitment to their oath and duty to order Martinez to file her original transcript at the clerk of court which is a basic, unambiguous requirement of the Court Reporter’s Act. To do that would substantiate wrong doing and damage the government’s defense against pending civil litigation.

 

Attorney Mark Geragos has filed a civil complaint on behalf of AJC because Darlene Martinez also failed to provide the entire transcript after receiving payment. “I was fascinated by the issue”, responds Geragos (Inside the Issue with Dr. Wilmer Leon, Sirius XM, Channel 110, 12/7/2013). “At first I was somewhat aghast and didn’t really believe…but we dug into and drilled down in it and the transcript has mysteriously disappeared”, adds Geragos. “Thirty-one years (of practicing law) and this is the first time that I have ever encountered a federal court transcript disappearing”, Geragos expounds.  “…we’re going to warehouse them (the IRP6) for years and years and years in federal prison and we don’t even have a transcript to back up what I consider a vital constitutional issue?’ asserts Geragos. “So it’s almost like law enforcement cannibalized themselves…and you have to wonder what was their motivation.  Who was driving this?” questioned Geragos.  From Geragos’ comments you can conclude he recognizes the simple, unambiguous legal issue of the missing transcript and is puzzled how the IRP6 remain in prison under such circumstances.

 

Any member of the public can conclude the Judge Arguello’s refusal to release the transcript is squarely motivated by her own despicable self-interest. AUSA Kirsh and Hazra as well as U.S. Attorney John Walsh’s reticence regarding the bench conference and the transcript are motivated by their disgusting self-interest to win a case at any cost. The facts in the IRP6 case clearly indicates that all of the judicial officials care nothing about men being wrongly imprisoned — care nothing about fathers being separated from their wives, mothers, children, and siblings — care nothing about the pain, suffering and crying of children — care nothing about destroying lives of innocent people. It’s a sad commentary.  Sounds like descriptions written about Assad or Sadam Hussein who we classify as ruthless tyrants and oppressors.  Oppress is defined as “to keep down by cruel or unjust use of authority; tyrannical. Sounds like the characteristics of judicial officials in the IRP6 case to keep men imprisoned just because they have the power to do so.

 

Edward Snowden couldn’t have made the decision to expose the NSA’s brute violation of American’s privacy through their overreaching surveillance program if he was concerned about his self-interest. The government’s position that Snowden violated the law may be technically accurate, but make no mistake about it, the government’s interest in prosecuting Snowden is not predicated on a violation of law — rather based on self-interest — that he embarrassed the U.S. government and exposed them to castigation. Snowden’s motives clearly appear to be altruistic and it took a great deal of courage to take such a risk on behalf American’s privacy.

 

Remember, a servant is a person devoted to another or to a cause. Many of our judicial officials and government could take a lesson from Snowden on what it means to be a public servant and put their duty and oath before their self-interest.

The problem is that many laws are routinely misused and misapplied to serve the self-interest of those in our government. Many in our government thirst for power and routinely justify misusing laws and violating individual rights under a cloak of rhetoric that they “are saving lives” or “keeping American’s safe”. Closer analysis of the facts generally show the results don’t live up to the rhetoric as evidenced recently in a December 16, 2013 opinion by DC Circuit Judge Richard Leon in Klayman v. Obama. Judge Leon found that the government presented no evidence that the NSA’s bulk collection program ever thwarted a terrorist attack and that the bulk collection of information on Americans is almost certainly unconstitutional.

 

Thanks to Snowden, Americans have voiced their displeasure with the NSA’s intrusions into our private lives and now a national debate is taking place.

Wrong doesn’t correct itself. It requires people to take action to correct wrong. The IRP6 being denied a complete transcript in a criminal trial is just plain wrong. Judge Arguello failed to correct the wrong. Darlene Martinez, AUSA’s Kirsch and Hazra, U.S. Attorney John Walsh, Attorney General Eric Holder, Administrative Office of the United States Courts and the 10th Circuit Court of Appeals have all failed thus far to correct the wrong which has cost the IRP6 18 months of their freedom.

 

Ryan Ferguson was recently released from prison after 10 years on a wrongful conviction and told reporters “To get arrested and charged for a crime you didn’t commit, it is incredibly easy and you can lose your life very fast, but to get out, it takes an army.”

 

Ferguson’s statement represents that something is desperately wrong and sadistic about our judicial system and officials. It indicates that many of our judges and prosecutors are perverts of justice. With single-minded focus, passion and force of will, like African wild dogs relentlessly pursuing prey, prosecutors and judges relentlessly pursue convictions and imprisonment — of which some they know a crime was never committed as with the IRP6. When clear evidence is presented that a person has suffered a wrongful conviction or government officials have broken the law to gain a conviction as in the IRP6 case, they relentlessly pursue their self-interest of losing a case or saving face.

 

The Constitution, cause of justice, life and liberty be damned. I am a federal prosecutor.  I am a federal judge.  I am above the law.  I can’t be prosecuted for my wrong doing because I have immunity. God can’t even stop me. I simply don’t care.

 

This is why the U.S. houses 25% of the world’s prison population while being 2% of the world population. Americans should be appalled and lift their voices to speak against double-minded judicial officials for allowing injustice to endure and hold rogue prosecutors and corrupt judges accountable for their illegal and unethical actions. While they are currently immune from prosecution and lawsuits, they are not immune from castigation. The U.S. justice system in its current state is a clear and present danger to each and every American citizen. The injustice and blatant disregard for the law and the Constitution by judicial officials in the IRP6 case should not go unchallenged. Martin Luther King Jr. said “Injustice anywhere is injustice everywhere”. The IRP6 injustice impacts all Americans.

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