As I ponder the wrongful conviction and imprisonment we [the IRP6] have suffered at the hands of American justice, I searched for a word to adequately describe the ethos of judicial officials in the United States. The word I chose is insouciance, which is defined as:
Freedom from concern or care: absence of studied attention; an attitude of indifference or unconcern, especially to the impression created (as by one's work, conduct, or comportment) on others.
American justice officials by in-large could care less whether a citizen lives, dies or loses their freedom unjustly. All they care about is winning at any cost. No cost is too high, no life is too precious. They are viciously insouciant. I compare their ethos to that of the notorious and depraved New Jersey mob hit man, Richard Kuklinski, AKA, the Iceman. If you have not seen videos on this guy, do a search on YouTube or Google to find some online videos. The Iceman murdered literally hundreds of people and when asked whether he felt bad about all the murders he committed he stated: "It doesn't bother me, it doesn't bother me at all." I see the same type of depravity of mind present in American judicial officials. Don't discount or judge my characterization until you read the rest of my blog.
A major characteristic present in the ethos of American judicial officials is a feeling that they are above the law. Even when they're caught intentionally violating the law, they insouciantly give post hoc excuses for their indefensible conduct and NEVER, EVER take responsibility for their actions. This vicious insouciance has become a customary and accepted practice --- cultivated and ingrained over decades of realization that they will never be held accountable for their illegal actions because they are cloaked in the legal doctrine of immunity. An exacerbating influence contributing to their ethos is a justice system framework that breeds concealment of evidence through a faith and trust that fellow officials ranging from prosecutors, judges, court reporters and clerks of court will support concealment of their misconduct and subvert the administration of justice on their behalf. Many justice officials would argue that these violations of law are isolated incidents and we often hear them justify their behavior with the veritable "I didn't mean to do it" excuse. Other terms they commonly used to support their "I didn't mean to do it" excuse are "misstep", "unintentional", "inadvertent", "immaterial", "mistake", or "harmless". They will never let targets of their prosecution escape with such absurd excuses for obvious violations of the law.
There is an interesting parallel that can be drawn between the ethos of justice officials to that of child who is never chastised or corrected for their bad acts. As that child grows up, his conduct worsens and he becomes more obstinate, rebellious, stubborn and narcissistic --- refusing to accept responsibility for his actions. In some cases, peer pressure can serve as a deterrent to continued bad behavior if the child values having the respect and acceptance of friends. But if friends accept and endorse the bad behavior and fail to criticize, the child will grow into an adult with a warped sense of right and wrong and will likely end up being disrespectful to the rights of others, engaging in criminal activity and likely go to prison.
A justice official, who is never corrected for their illegal conduct, continues to get more corrupt and refuses to accept responsibility for their actions. Peer pressure is not present to deter their behavior because their fellow judicial officials conceal the misconduct, provide little or no forceful criticism and refuse to enforce the laws they violate. Their conscience erodes over time and their misconduct becomes increasingly more egregious and brazen, resulting in a society of justice officials becoming more viciously insouciant to depriving citizens of their life, liberty and other constitutional rights with impunity. The Supreme Court of the United States (SCOTUS) addressed the maxim that no man is above the law in the case of Economou v. Butz, 438 U.S. 478 (1978):
"Our system of jurisprudence rests on the assumption that all individuals, whatever their position in government, are subject to federal law: 'No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.'"
Maxims like no one is above the law, our Constitutional rights and other eloquent pronouncements flourished by our courts are nothing more than lofty ideas that only exist in the theory and are not practiced in the real world. If judicial officials were not above the law, there would be legitimate laws to hold them criminally accountable for their willful and intentional violations of the law and constitutional rights that result in wrongful convictions and imprisonment of American citizens. This is a clear failure of Congress. As a result judicial officials routinely defy the law with impunity. SCOTUS also opined that "If the law was clearly established...a reasonably competent public official should know the law governing his conduct." Harlow v. Fitzgerald, 457 U.S. 818 (1982) and that "[I]t is not unfair to hold liable the official who knows or should know he is acting outside the law..." Economou v. Butz, 438 U.S. at 506. We must conclude that this too is nothing more than empty rhetoric when we look at the following cases and the insouciance shown by judicial officials engaging in blatant misconduct to subvert the administration of justice.
The Court Reporter's Act (CRA), 28 USC 753(b), 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 methods." The CRA also states that the court reporter "shall attach his official certificate to the original shorthand notes or original [UNEDITED] 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 10 years." The CRA further states that "the original notes or other original [UNEDITED] records and the copy of the transcript in the office of the clerk shall be open during office hours to inspection by any person without charge."
During trial the IRP6, who were pro se defendants, alleged that Judge Christine M. Arguello violated their 5th Amendment right against self-incrimination when she forced them to testify against their will during a bench conference. Ultimately one of the IRP6 took the stand and another objected during cross-examination that they were forced to testify after being threatened by Judge Arguello and that a mistrial should be declared due to the prejudice they had suffered before the jury. Judge Arguello strongly denied compelling their testimony. When the IRP6 immediately requested a copy of the unedited transcript to prove what was said, Judge Arguello denied that request and many more requests during and after trial. Given that the court reporter is required by CRA to file the original [unedited] transcript and shorthand notes promptly after trial with the clerk of court, certainly the IRP6 would still be able to acquire the unedited transcript at the clerk's office. Unfortunately, court reporter Darlene Martinez, never complied with the law and/or the clerk's office refused to allow inspection of the transcripts. Because of those willful and intentional violations of the court reporter's act, the IRP6 have spent the past 22 months in a federal prison unable to challenge and resolve what Judge Arguello said at the bench conference that denied them a fair trial. For the past three years, viciously insouciant judicial officials in Colorado and the 10th Circuit have refused to turn over the unedited transcript to the IRP6 or order Martinez and the clerk's office to comply with the CRA. Not a single judicial official, from judges to federal prosecutors to court reporting supervisors enforced the Court Reporter's Act in the IRP6 case. NOT ONE! Why? To protect the reputation of a judge who obviously violated the IRP6's 5th Amendment rights and to give the Assistant United States Attorney (AUSA) Matthew Kirsch a victory at trial.
AUSA Kirsch, who witnessed Judge Arguello violate the IRP6's 5th Amendment right, insouciantly excused Judge Arguello's prejudicial statements as "immaterial" and categorized IRP6's complaint about their rights being violated and requesting the unedited transcript as "self-serving". Compare that to the 10th Circuit Court of Appeals who insouciantly stated that IRP6's request that they [10th Circuit] order the court reporter to abide by the law and file the transcripts with the clerk of court as "frivolous". It doesn't bother them in the least that the IRP6 was denied a fair trial and have lost their freedom as a result. They could care less that their despotic and sick actions resulted in kids crying and wives and family mourning the loss of their husbands and brothers. When the justice advocacy organization, A Just Cause, filed a civil lawsuit against Martinez for her illegal actions involving court transcripts, Judge R. Brooke Jackson dismissed the case on legal grounds but admitted that IRP6's contentions that statements made by Judge Arguello are missing from the transcript. However, Judge Jackson fell woefully short of insuring the IRP6 received the unedited transcript and shorthand notes.
In Jackson's insidious order, he claims he took judicial notice and actually reviewed portions of the unedited transcript. Jackson further asserts in his order that the unedited transcript and shorthand notes are on file in clerk's office and actually includes three single-page exhibits that he claims are shorthand notes, unedited transcript portion and a screen print of the bailiff's computer. Judge Jackson then claims he compared the content amount between unedited and edited transcript found minor difference in size. All that sounds real good Judge Jackson, but the IRP6 and the public would like to conduct their own comparison which is our right under the law. Unfortunately, when AJC went to the clerk of court to review the said exhibits and transcripts and they were not there or not provided by the clerk's office. If Judge Jackson was interested in enforcing the law and stands by his findings, he would have ORDERED the clerk's office or Martinez to immediately turn over the entire unedited transcript and all shorthand notes to the IRP6 so any dispute would be put to rest. Instead, Judge Jackson punts the ball back to the clerk's office where the IRP6 and public are still being denied access to the records. Jackson is the latest official to perpetrate insouciance to laws being broken, to justice being subverted, and to innocent men languishing in prison after being denied a fair trial. The 10th Circuit's vicious insouciance is apparent because they still refuse to reverse the IRP6's conviction in contradiction to their own precedent.
Two federal judges, Judge Arguello and Judge Jackson have confirmed in court records that the transcript of the sidebar is missing, unavailable or was not recorded. In U.S. v. Haber, 251 F.3d 881 (10th Cir. 2001), the 10th Circuit said from their own mouth that a conviction 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", however they have failed to act accordingly in the IRP6 case. Retired federal appellate Judge H. Lee Sarokin, a Huffington Post contributor, reviewed the IRP6 case and found that the 10th Circuit, according to the law, has had "ample opportunity" and time to reach a determination that the IRP6's 5th Amendment right was violated. See Judge Sarokin's full commentary and online postings at the Huffington Post, which he titles "The Case of the Missing Transcript" at (http://www.huffingtonpost.com/judge-h-lee-sarokin/).
Since the 10th Circuit can't make a determination due to missing portions of the transcript, why do they allow the IRP6 to remain in prison? They are the Iceman! They are insouciant to wrongful convictions. They are insouciant to citizens being denied a fair trial and losing their freedom. They are insouciant to crying children and mourning families. They are INSOUCIANT TO INJUSTICE! They are insouciant because they have immunity and cannot be punished for their actions. Like the Iceman, It doesn't bother them. It doesn't bother them at all.
Stay tuned for Part 2 where I discuss the ethos of American justice related to the prosecutorial misconduct in the Senator Ted Stevens case.